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2013 DIGILAW 290 (GAU)

Ratan Roy v. State of Assam

2013-05-08

I.A.ANSARI, P.K.MUSAHARY

body2013
JUDGMENT Iqbal Ahmed Ansari, J. 1. This appeal is directed against the judgment and order, dated 10.01.2008, passed, in Sessions Case No. 59/2007, by the learned Sessions Judge, Karimganj, convicting the accused-appellant, Ratan Roy, under Section 302, IPC and sentencing him to undergo imprisonment for life and pay fine of Rs. 5,000/- and, in default of payment of fine, suffer simple imprisonment for a period of 6 (six) months. The case of the prosecution may, in brief, be described thus: (i) Ranjit Rabidas (since deceased) and Ratan Roy (accused-appellant) were neighbours and friends. However, some differences took place between the two, when deceased Ranjit alleged that Ratan Roy had committed theft of gourd (chal kumra) belonging to Ranjit's family. On 08.08.2003, Ranjit heavily consumed alcohol and, taking a dao in his hand, stood in front of the house of the accused and started abusing the accused. At about 8-00/9-00 p.m., on 08.08.2003, when the accused returned home, he heard Ranjit abusing him and, hearing Ranjit abusing him, when the accused came out and confronted Ranjit, the neighbouring people also arrived there and separated the two. Thereafter, the accused went out and, having consumed some liquor, started looking for Ranjit and, eventually, found Ranjit lying at the verandah of the nearby Kali Mandir (Kali temple). Though, taking a piece of burnt wood, the accused went near Ranjit, he (accused), on finding Ranjit sleeping at the verandah of the temple, came back, but, again, returned to the place, where Ranjit was sleeping, and woke him up. As soon as Ranjit saw the accused, he, once again, started hurling abuses on the accused and started beating Ranjit by using the said piece of wood. When Ranjit tried to catch hold of the accused, the accused pushed Ranjit and dashed him against the wall of the verandah of the temple and came back home and, sometime thereafter, when the accused went back, again, to the temple and, on finding Ranjit lying dead there, the accused became frightened and went back to his house once again (ii) (Pt. II) On an ejahar being lodged, in this regard, on 09.08.2003, at Karimganj Police Station, by PW 1, mother of the accused, a case was registered against the accused under Section 201, IPC. II) On an ejahar being lodged, in this regard, on 09.08.2003, at Karimganj Police Station, by PW 1, mother of the accused, a case was registered against the accused under Section 201, IPC. (iii) During investigation, police held inquest over the said dead body, which was also subjected to postmortem examination, and seized a piece of wood, which was allegedly produced by the accused. The accused also made judicial confession and, on completion of investigation, a charge-sheet was laid against the accused under Section 302, IPC. 2. At the trial, when a charge, under Section 302, IPC, was framed against the accused, he pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 10 (ten) witnesses. The accused was, then, examined under Section 313, Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offence, which was alleged to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence. 4. Having, however, come to the conclusion that the accused was guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, which has been passed against him, the accused, as a convicted person, has preferred this appeal. 5. We have heard Mrs. M.B. Baruah, learned amicus curiae. We have also heard Mr. K.A. Majumdar, learned Additional Public Prosecutor, Assam. 6. While considering the present appeal, it may be noted that there is, admittedly, no eye witness to the occurrence of the alleged killing of Ranjit by the accused-appellant. 7. Bearing the above fact in mind, let us, first, come to the evidence of PW 1, who is mother of the deceased and also informant of the case. 8. According to the evidence of P.W. 1, the accused is their neighbour, a quarrel took place between her son and the accused and the accused, eventually, killed her son. In her cross-examination, however, PW 1 has admitted that she does not know how her son died. 9. Thus, except for the fact that according to the evidence of PW 1, the relation between the accused and the deceased was strained, no other incriminating evidence was given by PW 1. 10. In her cross-examination, however, PW 1 has admitted that she does not know how her son died. 9. Thus, except for the fact that according to the evidence of PW 1, the relation between the accused and the deceased was strained, no other incriminating evidence was given by PW 1. 10. So far as PW 2 is concerned, who is brother of the informant, has deposed that when he came to the verandah of the temple, he found Ranjit's dead body lying there. From the evidence of PW 2, too, it is clear that he does not know as to how Ranjit died. 11. So far as PW 3 is concerned, his evidence stands on no better footing than the evidence of PW 1 and PW 2 inasmuch as PW 3 has also conceded, in his cross-examination, that he does not know as to how Ranjit died. 12. What must, however, be noted is that according to the evidence of PW 3, the accused and the deceased used to move together and this fact remained unchallenged throughout. 13. As far as PWs 4, 5, 6, 7 and 8 are concerned, they have, admittedly, given no incriminating evidence against the accused. 14. It is only PW 9, whose evidence is found to be somewhat incriminating against the accused inasmuch as he has deposed that at the time of the occurrence, he used to run a shop, at Karimganj Railway Station, and, in the year 2003, because of the illness of his son, he went to the temple and performed Kirtan (religious song) along with some others and, at that time, he had seen the accused abusing with a piece of wood in his hand. 15. As far as the doctor (PW 6) is concerned, his evidence is to the effect that, on 09.08.2003, he performed post-mortem examination on the dead body of Ranjit and found as follows: 1. External Appearance: An average built male body, whose rigor mortis were present in both upper and lower limbs; eyes closed, mouth closed; bleeding from the left ear. 1. One big haematoma with abrasion over that haematoma under the scalp over the right parietal region of about 6"X6" extending to the occipital region. 2. Blackish bruise over the lower 1/3rd of the ventral aspect of left arm of about 1"X1". 3. Blackish bruises over the left forearm ventral aspect of about 3"X1". 4. 1. One big haematoma with abrasion over that haematoma under the scalp over the right parietal region of about 6"X6" extending to the occipital region. 2. Blackish bruise over the lower 1/3rd of the ventral aspect of left arm of about 1"X1". 3. Blackish bruises over the left forearm ventral aspect of about 3"X1". 4. Blackish bruises over the dorsum of the base of the left index finger of about 1"X1/2". 5. Blackish bruises over the both knees joint of about 3" X 2" X 1" carbon shoots. 6. Linear abrasions over the right chest of about 2" parallel to 7th rib of about 2" reddish in color. II. Cranium and spinal canal: There is of left parietal bone. There is tear of membrane and haematoma over the sub dural space. III. Thorax: Heart found healthy and contained blood in all chambers. All other parts found healthy. IV. Abdomen: Stomach and its contents found healthy and contained undigested food materials. Large intestine an its contents and also bladder found healthy and empty. All other parts found healthy. V. Muscles, Bones and Joints. NIL More detailed description of injury or disease. 16. It is in the evidence of the doctor (PW 6) that the injuries were ante-mortem in nature and the death was, in his opinion, due to shock as a result of the head injury sustained by the said deceased and the said injury being sufficient to cause death. In his cross-examination, the doctor has ruled out the possibility of head injury having been caused by a mere fall on hard substance unless the fall is from some height. 17. The prosecution, thus, rests its case on the judicial confession of the accused. While considering the judicial confession of the accused-appellant, it needs to be noted that while cross-examining the Investigating Officer (PW 10), the defence did not even suggest to the Investigating Officer that the accused had been forced or coerced to make judicial confession. This apart, we have also closely examined the evidence given by the Judicial Magistrate (PW 7), who recorded the confession of the accused-appellant. Though the defence cross-examined the Judicial Magistrate (PW 7), there was not even a whisper, at the time of his cross-examination, that the confession, made by the accused, was involuntary or untrue. 18. This apart, we have also closely examined the evidence given by the Judicial Magistrate (PW 7), who recorded the confession of the accused-appellant. Though the defence cross-examined the Judicial Magistrate (PW 7), there was not even a whisper, at the time of his cross-examination, that the confession, made by the accused, was involuntary or untrue. 18. Situated thus, we do not find any reason to hold that the judicial confession of the accused was either involuntary or untrue. 19. Keeping the above position of the evidence on record in view, we reproduce hereinbelow the confession, which had been made by the accused: On 05.08.2003, some one stole away 2/3 Chal kumra (gourd) from the roof of the house of my neighbour Ranjit Rabidas. Concerning this stealing Ranjit Rabidas day and night used to blame me, my family and the owner of the house in slang language and for this reason at 8 in the morning and 9/10 in the evening of Thursday quarreled with Biren, Dhiren and his father of 'Akhrabari'. Neighbouring people allayed their quarrel. Thereafter on 08.08.2003 for the whole day consuming alcohol with and taking dao in his hand Ranjit Das abused in filthy language in front of my rented house. I spoke to Ranjit Das regarding Chal kumra in plain language, but he continued scolding in slang language and blaming when I went to pull rickshaw. At 8/9 in the evening returning home after finishing rickshaw pulling and marketing, I heard Ranjit Das abusing. Coming out to road, when I met Ranjit Das face to face and the neighbouring people quelled the quarrel, I went to the house of Dhai Rabidas and consuming country liquor worth rupees fifteen, I went out in search of Ranjit Das. Getting Ranjit Das lying in the verandah of 'Kali Mandir' (Kali temple), I took a burnt wooden piece and went near to kill him and found him sleeping. Finding him sleeping, I came at some distance and again went back and rouse Ranjit Das from his sleep. As soon as he saw me after awaking from his sleep, when he rebuked me saying 'Natibachhi' (son of characterless), 'lau chur' (gourd thief) with the burning piece of wood in my hand I started beating him. Finding him sleeping, I came at some distance and again went back and rouse Ranjit Das from his sleep. As soon as he saw me after awaking from his sleep, when he rebuked me saying 'Natibachhi' (son of characterless), 'lau chur' (gourd thief) with the burning piece of wood in my hand I started beating him. As Ranjit Das tried to catch hold of me, I pushed and dashed him against the wall of east verandah of Kali temple and while coming back leaving him there left the burning piece of wood in the pond of 'Smashan Kalibari'. I went home when my wife asked me to take rice, I did not and told her about the incident and again went back to 'Smashan Kalibari'. I found Ranjit Das lying front side down in the east verandah of old Kali temple and pushing him with hand, I found that Ranjit Rabidas died and blood was oozing from his nose and ear. Thereafter being frightened, I went home and without taking rice went to sleep. On 09.08.03, in the morning, I went for pulling rickshaw and at 1 p.m. seeing in front of house went to the house of Ward Member Sujata and described about the incident. Sujata was there. Found out the piece of burnt wood and handed over to police. Confessed about the incident. 20. A careful reading of the judicial confession, which has been made by the accused, leaves no room for doubt that it was the accused-appellant, who had killed Ranjit. The question, which, however, stares at us, is; whether the accused could have been convicted under Section 302, IPC? In other words, the question is : Whether, on the face of the confessional statement of the accused-appellant, he could have been held guilty of having committed the offence of murder? 21. The question, which, however, stares at us, is; whether the accused could have been convicted under Section 302, IPC? In other words, the question is : Whether, on the face of the confessional statement of the accused-appellant, he could have been held guilty of having committed the offence of murder? 21. Our quest for an answer to the above question brings us back to the judicial confession and we notice from the judicial confession that the accused and Ranjit (i.e., the deceased) were neighbours and, on 05.08.2003, when someone committed theft of gourd from the roof of the house of Ranjit, he started blaming the accused and his family alleging that they were the ones, who had stolen away the gourd and, on 08.08.2003, Ranjit came, in drunken state, holding a dao in his hand, to the house of the accused and, standing in front of the house of the accused, started abusing the accused. When the accused came home, he heard Ranjit abusing him. The accused, then, went out of his house and, on confronting Ranjit, a quarrel took place between them; but the neighbours intervened and the two were separated. Thereafter, it was the accused, who went out, consumed liquor and went in search of Ranjit and, on finding Ranjit lying at the verandah of Kali Mandir, he picked up a burnt piece of wood lying nearby and came near Ranjit, but, on finding Ranjit sleeping, moved few steps away. The accused, again, went back to Ranjit and woke him up. However, as soon as Ranjit woke up, he, on noticing the accused, started abusing the accused by calling him thief. Unable to control the provocation, which he had received at the hands of Ranjit, the accused started beating him with the piece of wood, which was in his hand, and, as Ranjit tried to catch hold of the accused, the accused pushed Ranjit away and Ranjit dashed against the wall of the temple and, then, the accused moved away leaving behind the piece of the wood. Though the accused came back home, he was unable to have his meals and went back to the place of occurrence and he, on reaching there, found Ranjit lying and, on pushing Ranjit by hand, he found that Ranjit had already died. Feeling frightened, the accused went back to his home and went to sleep without having his meals. 22. Though the accused came back home, he was unable to have his meals and went back to the place of occurrence and he, on reaching there, found Ranjit lying and, on pushing Ranjit by hand, he found that Ranjit had already died. Feeling frightened, the accused went back to his home and went to sleep without having his meals. 22. From the description of the occurrence, which emerges from the confessional statement of the accused-appellant, it clearly transpires that the accused-appellant did not intend, at any stage, to kill the deceased, or else, the accused, would have assaulted Ranjit at the time, when he found Ranjit sleeping at the Mandir. This apart, the accused-appellant had no reason to go back to the place, where the accused had left Ranjit lying injured. 23. The narration of facts, as discernible from the judicial confession of the accused-appellant, makes it abundantly clear that it was the deceased, who gave extreme provocation to the accused-appellant and it was under the sudden and grave provocation that the accused-appellant happened to assault the deceased, dashed him against the wall of the temple and unknown to the accused, the deceased breathed his last. 24. If the facts, surfacing from the judicial confession, are dispassionately analysed, the same leave no room for doubt, if we may reiterate, that the accused never intended to kill the deceased and though the said deceased met with his death, because of the assaults, which he received at the hands of the accused, the offence, which the accused-appellant committed, fell not within the ambit of Section 302, IPC, but within the ambit of Section 304(Pt. II), IPC. 25. Because of what have been discussed and pointed out above, we are clearly of the view that the accused-appellant ought not to have been convicted under Section 302, IPC, though he could have been convicted, and ought to have been convicted, under Section 304(Pt. II), IPC, 26. In the result and for the reasons discussed above, this appeal partly succeeds. The conviction of the accused-appellant and the sentence, passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held guilty of commission of offence under Section 304(Pt. II), IPC and is hereby convicted accordingly. II), IPC, 26. In the result and for the reasons discussed above, this appeal partly succeeds. The conviction of the accused-appellant and the sentence, passed against him by the judgment and order, under appeal, are hereby set aside. The accused-appellant is held guilty of commission of offence under Section 304(Pt. II), IPC and is hereby convicted accordingly. For the offence committed by the accused, we are of the view that a sentence of rigorous imprisonment for a period of 6(six) years with fine of Rs. 500/- and, in default, simple imprisonment for a period of 2(two) months would meet the ends of justice. 27. We accordingly sentence the accused-appellant to undergo rigorous imprisonment for a period of 6(six) years with a fine of Rs. 500/- and, in default of payment of fine, suffer simple imprisonment for 2 (two) months. The period of imprisonment, which the accused-appellant has already undergone, be set off against the sentence, which we have passed. 28. With the above observations and directions, this appeal stands partly allowed. 29. Send back the LCR with a copy of the judgment and order. Let the learned amicus curiae be paid a sum of Rs. 5,000/- for his valuable assistance rendered to the Court.