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2013 DIGILAW 353 (GAU)

Dipak Rava v. State of Assam

2013-05-28

BIPLAB KUMAR SHARMA, L.S.JAMIR

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. Heard Mr. B. Chakraborty, learned Amicus Curie. Also heard Mr. H.K. Sharma, learned Additional Public Prosecutor, Assam. This appeal from jail is against the judgment dated 21.02.2009, passed by the learned Sessions Judge, Darrang, Mangaldai, in Sessions Case No. 185(DM)/2005, convicting the accused/appellant u/s. 302/34 IPC and sentencing him to undergo rigorous imprisonment for life with fine of Rs. 5000/- and in default, rigorous imprisonment for another 6 (six) months. Be it stated here that other accused person, namely, Labanya was absconding at the time of delivering the impugned judgment. 2. PW-1 had lodged the FIR on 14.06.2005 with the Paneri Police Station, furnishing the information that his son Tankeswar Rava, while was sleeping in his house, some unknown miscreants inflicted injury on his neck with a knife, as a result of which, he died in the particular hospital. It is in the evidence that the deceased after wrapping his injuries on neck with a "Gamocha", went to the Tea Garden Hospital, riding on a bi-cycle. 3. On the basis of the aforesaid FIR, Paneri P.S. Case No. 73/2005 was registered u/s. 302 IPC. Following the investigation that was carried out by the police, the present appellant along with said Labanya, who is the wife of the deceased was charge sheeted u/s. 302/34 IPC. During trial, the prosecution examined 10 witnesses. 4. PW-9 who is the doctor, who conducted the autopsy on the dead body of the deceased, the following injuries were found on him:- Rigormortis all over the body present and the scrub of blood stain found all over the body. There is an incised wound 6cm x 3cm x 4cm deep over the upper part of the neck cutting trachea and left carotid artery along with neck muscles with blood clot around the wound. Trachere was cut at the upper third with blood clot inside the trachere. Both the lungs were collapsed and congested. Injuries were antemortem in nature caused by sharp cutting object. According to the said PW, death was caused due to shock and asphyxia due to haemorrhage and the wound. The injury as detected over the neck was sufficient to cause death of the deceased in the ordinary course of nature. In the cross examination, the said witness stated that the injury may be caused by "Batali". 5. According to the said PW, death was caused due to shock and asphyxia due to haemorrhage and the wound. The injury as detected over the neck was sufficient to cause death of the deceased in the ordinary course of nature. In the cross examination, the said witness stated that the injury may be caused by "Batali". 5. The learned trial Court has convicted the accused/appellant primarily on the basis of the evidence adduced by PW-3 and PW-8. Coupled with this, the learned trial Court has also considered the evidence that after the offence was committed, the accused/appellant along with Labanya (absconding) was not found at the place of occurrence, although they were also the inhabitants of the same house. 6. PW-1 is the first informant. Although he is not an eye witness and in the FIR he had stated that some miscreants has killed the deceased, but in his evidence adduced during trial, he had stated that the deceased while was sleeping had been inflicted with injury on his neck with Hammer and Chisel (Batali). He further stated that the deceased wrapping a "Gamocha" on his neck, went to a particular Tea Estate by riding his bi-cycle. The Tea Estate is about 2 miles away. According to this witness, the accused/appellant and Labanya left the Hammer and Chisel and ran away from the place of occurrence, leaving the deceased in the injured condition. In the cross examination, PW-1 stated that the deceased at times, used to get drunk and tortured Labanya by assaulting. 7. PW-2 in his deposition also narrated this incident. In his deposition he also stated as to how the deceased wrapped the cut injuries on his neck with a "Gamocha", went to him and with gesture intimated that he would go to hospital for being administered injection. This witness could not find the accused/appellant and Labanya in the house. According to him, they were absconding. He also stated in his deposition that later on, the victim died in the hospital. In his cross examination, he stated that the deceased used to drink. However, he also stated that he did not know anything about any quarrel with his wife. 8. PW-3 is the witness before whom extra judicial confession was allegedly made by the accused/appellant along with Labanya. In his cross examination, he stated that the deceased used to drink. However, he also stated that he did not know anything about any quarrel with his wife. 8. PW-3 is the witness before whom extra judicial confession was allegedly made by the accused/appellant along with Labanya. He in his deposition, stated that when the police asked at the police station, the accused/appellant had confessed that he along with Labanya had killed the deceased. In the statement made by the accused/appellant u/s. 313 Cr.P.C. it was stated by him that the particular confession attributed to him by the PW-3 was because of the assault by the police and that he did not kill the deceased. 9. PW-4 in his deposition stated that he did not find the accused at home and even the villagers did not find them. 10. PW-5 in his deposition stated that there was assault between the deceased and his wife along with his younger brother i.e. the accused/appellant. In his cross examination also he has stated that on the day of occurrence all the members of the deceased's family were quarrelling. He also stated that the deceased also assaulted him and that the accused fled away. 11. PW-6 and PW-7 also stated about the incident. PW-6 in his deposition stated that doctor provided treatment to the deceased. He could notice the injury on the neck of the deceased. He is the signatory to the inquest report. He in his cross examination stated that he was surprised to see the deceased cycling in the injured condition. 12. PW-8 is the VDP Secretary of the village, who in his deposition stated that both the accused i.e. the present appellant and Labanya had gone to his house crying and the accused Labanya told him that assault took place between the accused/appellant and the deceased and a consequence of which the appellant inflicted the injury on the deceased with a Chisel. According to this witness, Labanya had confessed before him that both of them had inflicted the injury on the deceased. 13. PW-10 and PW-11 are the Investigating Officers, who had conducted the investigation. They in their depositions generally stated about the investigation that was carried out. 14. It is on the basis of the above evidence the learned trial Court has convicted the accused/appellant under Section 302 IPC r/w Section 34 IPC. Mr. 13. PW-10 and PW-11 are the Investigating Officers, who had conducted the investigation. They in their depositions generally stated about the investigation that was carried out. 14. It is on the basis of the above evidence the learned trial Court has convicted the accused/appellant under Section 302 IPC r/w Section 34 IPC. Mr. Chakraborty, learned Amicus Curie has submitted that it will be totally unsafe to convict the accused/appellant on the basis of the aforesaid evidence. He submits that the conviction of the accused/appellant is not sustainable as the extra judicial confession purportedly made before the PW-3 is not admissible in evidence, the same having been made in the police station and as stated by the accused/appellant in his statement u/s. 313 Cr.P.C. that the same was because of the assault on him by the police. As regards the extra judicial confession purportedly made before the PW-8, Mr. Chakraborty, learned Amicus Curie, submits that in absence of any identification as to who had inflicted the injury out of the two accused persons, it will be unsafe to hold the accused/appellant guilty of the offence u/s. 302 IPC. 15. Mr. H.K. Sharma, learned Additional Public Prosecutor, on the other hand submits that there is nothing to disbelieve the testimony of PW-8, who in his evidence categorically stated that the two accused persons had gone to his residence after committing the crime and confessed before him of the same. Referring to the cross examination of the said witness, he also submits that the testimony of the PW-8 could not be dislodged and thus will have to be sustained. 16. We have considered the submission made by the learned counsels for the parties and have also perused the entire materials on record. As per the FIR lodged by the PW-1, some miscreants had committed the crime. However, during trial, the PW-1 although not an eye witness attributed the whole guilt on the part of the accused/appellant and Labanya. This being the position, no conviction can be sustained on the basis of such evidence. 17. As regards the other PWs, except PW-3 and PW-8, they are all reported witness and their testimony is to the effect that the two accused persons were absconding. This being the position, no conviction can be sustained on the basis of such evidence. 17. As regards the other PWs, except PW-3 and PW-8, they are all reported witness and their testimony is to the effect that the two accused persons were absconding. So far as PW-3 is concerned before whom the purported extrajudicial confession was made by the accused/appellant, same is not acceptable in evidence in as much as, as the materials have disclosed, the said statement was in the police station and when the accused/appellant was assaulted by the police. This now leads us to the evidence of PW-8 who in his evidence categorically stated that both the accused had gone to his house at night after committing the crime. They had gone to his place crying and admitted that they had inflicted injury on the deceased. 18. PW-5 in his deposition stated about the assault that took place between the deceased and the accused. It is also in the evidence that the deceased under influence of liquor, used to assault his wife i.e. Labanya. In this context, Mr. Chakraborty, learned Amicus Curie has referred to exception 4 of Section 300 so as to contend that at place it will be an offence punishable u/s. 304 Part-II IPC and not under 302 IPC. Exception 4 along with this explanation reads as follows:- Culpable homicide is not murder if it is committed without premeditation in a sudden, fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation--It is immaterial in such cases which partly offers the provocation or commits the first assault. 19. It is in the evidence on record that on the fateful day, there was assault between the parties as a consequence of which the accused/appellant along with Labanya, inflicted injury on the deceased which unfortunately resulted in his death. After the single injury sustained by the deceased, he could ride on a bi-cycle and go to the particular Tea Garden Hospital, situated at a distance of about 2 miles. It is in the medical evidence that only one injury was inflicted. 20. Above being the position, we are of the considered opinion that the impugned judgment of conviction and sentence needs to be modified to that of conviction under Section 304 Part-II IPC, instead of 302 IPC. It is in the medical evidence that only one injury was inflicted. 20. Above being the position, we are of the considered opinion that the impugned judgment of conviction and sentence needs to be modified to that of conviction under Section 304 Part-II IPC, instead of 302 IPC. It is ordered accordingly. 21. The appeal partly succeeds. The impugned judgment of conviction under Section 302 IPC stands converted to conviction under Section 304 Part-II IPC with the sentence of 07(seven) years rigorous imprisonment, maintaining the fine that has been imposed by the impugned judgment. 22. Registry shall send down the LCR of the learned trial Court along with a copy of this judgment. While appreciating the assistance rendered by Mr. B. Chakraborty, it is hereby provided that he will be entitled to a hearing fee of Rs. 5000/- to be held by the Legal Service Authority, upon production of a certified copy of this judgment, which shall be provided by the Registry to the learned Amicus Curie free of cost.