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2013 DIGILAW 840 (CAL)

Babulal Oraon @ Uraon v. State of West Bengal

2013-11-22

INDRAJIT CHATTARJEE, NISHITA MHATRE

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Judgment : Indrajit Chatterjee, J. 1. This appeal has been directed against the judgment, order of conviction and sentence as passed by the learned Additional Sessions Judge, 2nd Court at Jalpaiguri of the same district in Sessions case no. 33 of 1993 arising out G.R. case no. 104 of 1990 of the Sub- Divisional Judicial Magistrate, Alipore Duar of the said district which corresponds to Falakata Police Station case no. 20 of 1990 dated 10.02.1990 under Section 302/34 of the Indian Penal Code (hereinafter called as ‘said Code’). 2. The learned Trial Court was pleased to convict the six accused persons before him, namely, Babulal Oraon @ Uraon, Jogiram Tirki @ Tirkey, Sitaram Oraon @ Uraon, Sukra Oraon @ Dhapra Oraon @ Uraon and Prabhu Oraon as per order dated 05.02.2002 in respect of the charge under Section 302/34 of the said Code and sentenced them as per order dated 06.02.2002 to imprisonment for life and further sentenced them to pay a fine of Rs.2,000/- (Rupees two thousand only) each, in default to suffer simple imprisonment for three months for the said offence. 3. The fact which went for trial can be stated in brief thus : That on 10.02.1990 the de facto complainant of this case (since deceased) Somra Oraon, i.e., the father of the victim Mahabir Oraon went to Falakata Police Station at about 11:30 hours and lodged the FIR that his son, i.e., Mahabir was forcibly taken out from his house at 8 a.m. on that date by the convicts and that they assaulted the victim mercilessly by branches of trees which seriously injured the victim and he died instantly. 4. On receipt of the said FIR, the aforesaid Falakata Police Station case was registered under Section 302/34 of the said Code. The inquest examination was done on the dead body of the victim, the dead body was sent for post mortem report and the post mortem examination was done. The matter was investigated by the Investigating Officer (henceforth called as ‘the I.O.’) of this case, i.e., P.W. 11, and after completion of investigation the I.O. of this case submitted charge-sheet against all these accused ersons for the offence punishable under Sections 148, 448, 302 read with149 of the said Code. The case was committed to the Court of Sessions. Charge was framed accordingly to which the accused persons pleaded not guilty and claimed to be tried. The case was committed to the Court of Sessions. Charge was framed accordingly to which the accused persons pleaded not guilty and claimed to be tried. The defence did not make out any specific case except the plea of innocence. 5. The prosecution examined eleven witnesses before the Trial Court including the mother (P.W. 3) and sister (P.W. 5) of the victim and the I.O. of this case and found all the accused persons guilty in respect of the offence punishable under Section 302 read with Section 34 of the said Code. We have already stated regarding the sentence imposed. 6. The present appellants are in custody since 2011. At the time of hearing it was submitted by the learned advocate appearing on behalf of the defence by taking us to the post mortem report vis-à-vis the ingredients of Section 302 and Section 304 of the said Code and tried to convince this Court that there was no intention on the part of the convicts to murder the victim and as such it is the submission of the learned defence Counsel that these convicts may at best be convicted in respect of the offence punishable under Section 304 of the said Code preferably under Part II of the Section. 7. The learned Public Prosecutor representing the State has left the matter to the discretion of this bench to determine the issue. Now, the only question before this bench is as to whether on the facts and circumstances of this case including the injuries sustained by the victim this conviction under Section 302 of the said Code can be sustained, or whether the conviction can be converted to Section 304 Part I or II of the said Code? 8. The doctor who conducted the post mortem report on the dead body of the victim was not available before the learned Trial Court in spite of best effort of that Court. The said post mortem report was marked as Exhibit 8 before the learned Trial Court under Section 32 of the Evidence Act and as per that post mortem report the victim sustained the following injuries: It is hereby made clear that during the course of trial one convict, namely, Johan Oraon @ Uraon died and the case has been abated against him. (i) Fracture at the lower Rt. Arm. (ii) Abrasion over Lt. Side of chest. (i) Fracture at the lower Rt. Arm. (ii) Abrasion over Lt. Side of chest. (iii) Fracture on the left side of the chest (six ribs). (iv) Liver ruptured. (v) Injury over right eye. 9. Let us now consider the ingredients of Section 302 of the Code. This Section deals with the punishment for murder. Murder has been defined in Section 300 of the said Code. We are also to let the readers know what is culpable homicide which has been defined under Section 299 of the said Code. Before we proceed further we like to quote here Sections 299 and 300 of the said Code. Section 299 runs thus : Culpable homicide – Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Explanation 1.-A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3.- The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. Explanation 3.- The causing of the death of child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. Section 300 runs thus : 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.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or- Thirdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- Fourthly.- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol 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 provisions:- 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. 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. Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.- 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 party offers the provocation or commits the first assault. Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age eighteen years, suffers death or takes the risk of death with his own consent. 10. Thus, Section 299 deals with culpable homicide. In every murder there is culpable homicide. Murder is an aggravated form of culpable homicide. The mens rea or the intention is the main determining factor to convert a culpable homicide into a murder. 11. We have gone through the evidence on record both documentary and oral. It is apparent relying on the evidence of P.W.s 3 and 5, the two eye-witnesses of this case, that the victim was assaulted by all the convicts by the branches of trees which were later on seized by the I.O. of this case from near the dead body on the very date. It is apparent relying on the evidence of P.W.s 3 and 5, the two eye-witnesses of this case, that the victim was assaulted by all the convicts by the branches of trees which were later on seized by the I.O. of this case from near the dead body on the very date. On reading and re-reading the post mortem report we are convinced that the death of the victim was due to the injury no. 4, i.e., that the liver was ruptured. The other injuries as noted by the doctor (mentioned above) were not sufficient to cause the death of a human being. Thus, it is very difficult to say that the accused persons had the common intention to kill the victim. Visualising the fact as narrated by the eye-witnesses, i.e., P.W.s 3 and 5, we are satisfied that the accused persons had the knowledge that the act which they were going to commit could lead to the death of the victim. It cannot be said with certainty that the convicts had the knowledge that the act they were going to commit was so imminently dangerous that it must be within the knowledge of the offenders that the act was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death, and without any excuse for incurring the risk of causing death or such injury. 12. The essence of Clause (2) of Section 300 is to be found in the knowledge that the person harmed is likely to die were interate that the bodily injury intended to be inflicted is likely to cause death. Then definitely it is murder. The distinction is fine but appreciable. The word ‘likely’ means ‘possibly’. We like to illustrate, an injury ‘sufficient in the ordinary course of nature of death’ merely means that death will be the ‘most probable’ result of the injury having regard to ordinary course of nature. Section 300 requires the knowledge in a very high degree of probability that in all probability it will cause death or such bodily injury as is likely to cause death. An act done with such knowledge may convert one culpable homicide into murder. 13. Section 300 requires the knowledge in a very high degree of probability that in all probability it will cause death or such bodily injury as is likely to cause death. An act done with such knowledge may convert one culpable homicide into murder. 13. It is true that there was motive behind the crime as the victim on the previous day at 6 p.m. touched the hand of Anita, i.e., the sister of Babulal Oraon, i.e., the convict no.1 and proposed to marry her and immediately thereafter a meeting took place over that affair where it was decided that the victim should not have done this and the matter was settled. 14. Thus, this Court is satisfied that the victim Mahabir died due to assault on him inflicted by those convicts on the date of the incident and he died instantly. This Court is further satisfied that it is difficult to assess that the convicts intended the death of the victim by their act and the benefit must go to them. It is true that the attack on the victim was pre-meditated, but the intention is hard to derive. Considering the ingredients of Sections 299, 300 and 304 of the said Code we are satisfied that the case can safely be covered under Section 304 Part I of the said Code. 15. Thus we affirm the findings of guilt of the convicts that they finished the life of a young man over one issue which was almost settled on the day before but the act of the convicts as we have already told can at best be termed as culpable homicide not amounting to murder and as such the order of conviction is to be converted to Section 304 Part I read with Section 34 of the said Code and we do that. 16. Considering the nature of the crime, pendency of the litigation since 1990 we prefer to clamp a sentence for rigorous imprisonment for eight years on these five convicts lowering the sentence of life imprisonment as imposed by the learned Trial Court. 17. We are of the opinion that the fine amount is to be increased altering the fine amount as imposed by the learned Trial Court. That part of the sentence is also altered. 17. We are of the opinion that the fine amount is to be increased altering the fine amount as imposed by the learned Trial Court. That part of the sentence is also altered. These five convicts will have to pay fine of Rs.5000/- (Rupees five thousand only) each, in default to suffer simple imprisonment for six months. We further observe that if this fine amount is realised Rs.3,500/- (Rupees three thousand five hundred only) each which comes to Rs.17,500/- (Rupees seventeen thousand five hundred only) will go to the mother of the victim, i.e., P.W. 3, if she is alive, otherwise that amount will go to the sister of the victim, i.e., P.W. 5. We have already come to know that the father of the victim is already dead. The rest portion of the fine amount will go to the State. 18. The convicts, namely, Babulal Oraon @ Uraon, Jogiram Tirki @ Tirkey, Sitaram Oraon @ Uraon, Sukra Oraon @ Dhapra Oraon @ Uraon and Prabhu Oraon, will be entitled to get set off under Section 428 of the Code of Criminal Procedure the period of imprisonment already undergone during the investigation, trial and thereafter. seized articles be destroyed after the period of appeal is over. There will be no cost for this appeal. 19. All the convicts are in judicial custody and they must serve the remaining part of the sentence as may be calculated after the set off. 20. The concerned department is directed to send down the lower court record (all files) to the learned Trial Court at once along with a copy of this judgment.