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2014 DIGILAW 1049 (GAU)

Narayan Mandal v. State of Assam

2014-12-11

C.R.SARMA, M.R.PATHAK

body2014
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 17.12.2009, passed by the learned Addl. Sessions Judge (FTC), Rangia in Sessions Case No. 242(K)/2004 (G.R. Case No. 204/1999). By the impugned judgment and order, the learned Addl. Sessions Judge convicted the accused-appellant, under Section 302 IPC and sentenced him to suffer life imprisonment and pay fine of Rs. 1,000/- in default to suffer rigorous imprisonment for another period of 3 (three) months. 2. The prosecution case, in brief, is that, on 26.04.1999 at about 4.00 p.m., the appellant Sri Narayan Mondal had given blows on Sri Kalidas Mondal (hereinafter called the 'deceased') by means of a dagger as a result of which the deceased succumbed to the said injuries. 3. On 27.04.1999, Sri Gunen Sarkar (PW 4), who was the uncle of the deceased, lodged an FIR with the police, after registering a case, being Goreswar P.S. Case No. 22/2009 under Section 302 IPC, launched investigation into the matter. 4. During the course of investigation, police visited the place of occurrence, forwarded the dead body of the deceased for postmortem examination, examined the witnesses, seized a dao from the house of the appellant, collected post-mortem report and submitted charge sheet against the accused-appellant, under Section 302 IPC. 5. The offence, being exclusively triable by the court of Sessions, the leaned Judicial Magistrate, first Class, Rangia committed the case to the court of Sessions. The learned Addl. Sessions Judge framed charge under Section 302 IPC. The Charge was read over and explained to the accused-appellant, to which he pleaded not guilty. 6. In order to prove its case, prosecution examined, as many as, 8 (eight) witnesses including the Investigating Officer (PW 7) and the Medical Officer (PW-8), who performed the autopsy. 7. At the close of the evidence, prosecution examined the accused-person under Section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence. 8. Considering the evidence, on record, the leaned Addl. Sessions Judge, Rangia convicted and sentenced the accused-appellant, as indicated above. 9. Aggrieved by the said judgment and order, the convicted person, as appellant, has come up with this appeal. 10. We have heard Mr. A.L. Mondal, learned counsel, appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 11. Sessions Judge, Rangia convicted and sentenced the accused-appellant, as indicated above. 9. Aggrieved by the said judgment and order, the convicted person, as appellant, has come up with this appeal. 10. We have heard Mr. A.L. Mondal, learned counsel, appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 11. The learned counsel, appearing for the appellant, taking us through the evidence, on record, has submitted that there is no convincing and substantive evidence on record regarding the involvement of the appellant with the death of the deceased and as such, the learned Addl. Sessions Judge committed error, by recording the impugned conviction and sentence, as indicated above. 12. The learned counsel, for the appellant, has submitted that except PW 2, there is no other independent and reliable eye- witness and that the conviction cannot be maintained for want of corroboration, on material point 13. The learned counsel for the appellant further submitted that there are major contradictions in the evidence of the prosecution witnesses, more particularly in respect of the injuries, alleged to be sustained by the deceased and as such, the evidence given by the non- official prosecution witnesses cannot be acted upon. 14. It is submitted that the FIR was lodged after one day from the date of occurrence and that the said delay was fatal for the prosecution version. 15. In view of the above, the learned counsel, appearing for the appellant has submitted that the impugned conviction and sentence is not maintainable and as such, the appellant is entitled to be acquitted. 16. Refuting the said argument, advanced by the leaned counsel, appearing for the appellant, Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent, has submitted that there is sufficient corroboration in the evidence of the prosecution witnesses, on material point, more particularly, the evidence of the two eyewitnesses i.e. PW 2 and PW 5. 17. It is submitted that the recovery of the weapon of assault, at the instance of the appellant, finding of the dead body of the deceased in front of the house of the appellant coupled with the evidence of the said two eye-witnesses i.e. PW 2 and PW 5, forcefully lead to the conclusion that, none other than the appellant, had caused the death of the deceased. 18. The learned Addl. 18. The learned Addl. Public Prosecutor, Assam supporting the impugned judgment and order, has submitted that the learned Addl. Sessions Judge properly appreciated the evidence, on record, and came to the correct conclusion regarding the guilt of the appellant. Therefore, it is submitted that the impugned judgment and order suffers from no infirmity, requiring interference by this court. 19. Having heard the learned counsel, appearing for both the parties, we have carefully examined the evidence on record. 20. The investigating Officers, deposed as PW 6 and PW 7. Sri Dharani Barma (PW 6), who took up the investigation at the initial stage, stated that on 27.4.1999 on receipt of the FIR from PW 4, he made a G.D. Entry and proceeded to the place of occurrence, where he found the dead body of the deceased, lying on the road. He prepared inquest report in respect of the dead body of the deceased and forwarded the dead body to the Gauhati Medical College and Hospital for post- mortem examination. He further stated that he arrested the appellant and seized a dagger, on being produced by accused. He has exhibited the seizure list by which the dagger was seized as Ext. No. 1, the inquest report as Ext. No. 3 and the sketch map as Ext. No. 4. The Medical Officer (PW 8), who performed the autopsy of the dead body of the deceased, on 28.4.1999 in Gauhati Medical College and Hospital, stated that on examination of the dead body of the deceased, on being identified by the Constable No. 3007 Shri Munindra Das and one Sri Gopal Biswas, found the following injuries. 1. "Incised wounds size 11.6 cm x 3 cm x bone deep under 1.7 cm right shoulder placed in (illegible) to plane extending from right to left. 1st and 2nd ribs were cut, underneath the wound, auxiliary vessels were cut underneath the wound. 2. Incised wound 8.3 cm x 2.2 cm x muscle deep in the lateral side of the wrist joint. 3. Incised wound 4 cm x 2.3 cm x muscle deep in right prominence. 4. Incised wound in the palmer aspect of the right middle finger - 2 cm x.6 cm x muscle deep, placed transversely. 5. Incised wound 5.5 cm x 3 cm x muscle deep in the palmer aspect of the left side of the hand. 6. 3. Incised wound 4 cm x 2.3 cm x muscle deep in right prominence. 4. Incised wound in the palmer aspect of the right middle finger - 2 cm x.6 cm x muscle deep, placed transversely. 5. Incised wound 5.5 cm x 3 cm x muscle deep in the palmer aspect of the left side of the hand. 6. Incised wound 3 cm x 0.5 cm x muscle deep in the middle side of the left elbow joint. 7. Stab wound 2.5 cm x 0.5 cm x muscle deep in the posterior aspect and middle of the lift thigh." He opined that the injuries were caused by sharp cutting weapon and that the injuries were ante mortem in nature. He also stated that the cause of death was hemorrhage and shock due to the injuries sustained by the deceased and that the injuries were homicidal in nature. 21. From the said evidence, given by PW 6 and PW 8, it is clearly found that the deceased died due to injuries sustained by him and that the injuries were caused with sharp cutting weapon like dao or dagger. 22. Sri Gunen Sarkar (PW 4), who lodged the FIR, stated that, on 26.4.1999, coming to know about the occurrence, he visited the place of occurrence and found the dead body of the deceased, lying on the road in front of the house of the accused. He noticed cut injuries on the left hand and stab injuries on the chest. He stated that he came to know from others that the appellant had caused the said injuries. He further stated that as it was already night, he went to the police outpost on the next day and lodged the FIR. He has exhibited the FIR as Ext. No. 2 and he further stated that, on being asked by the police, the accused had produced the dagger, which contained bloodshed. He exhibited the seizure list as Ext. No. 1 by which the dagger was seized and his signature thereon as Ext. 1(1). 23. In his cross examination, this witness stated that, on the fateful day itself, he went to the house of the appellant in search of the appellant, but the appellant had already fled his house. He further stated that he saw the appellant in the police station and the police had taken him to the place of occurrence. 1(1). 23. In his cross examination, this witness stated that, on the fateful day itself, he went to the house of the appellant in search of the appellant, but the appellant had already fled his house. He further stated that he saw the appellant in the police station and the police had taken him to the place of occurrence. From the evidence of PW 4, it stood proved that the occurrence took place on 26.04.1999. 24. Now the question is who had caused the fatal injuries. PW 4 did not see the occurrence. He came to know about the involvement of the appellant on being informed by others. Of course, this witness stated that the accused had confessed that he had caused the death of the deceased with a dagger. But the said statement was made by the appellant i.e. the accused during his custody with the police. Therefore, the said confessional statement made, during the police custody, is hit by Section 27 of the Evidence Act. 25. The mother of the deceased (Smti Bashana Mandal), who was an eye witness to the occurrence deposed as PW 5. From her evidence, it is found that the appellant and the deceased were adjacent neighbours and they were relatives. PW 5 stated that, on the fateful day, at about 3.30 p.m., while returning from market, she found the appellant uprooting some small trees from her premises, for which she raised objection, but the appellant had threatened requiring her to vacate the premises. On being so threatened, her youngest son Sri Prma Lal Mandal had intervened and in the meantime, at the arrival of her eldest son i.e. the deceased, in the place of occurrence, the appellant had inflicted blows with a dagger causing injuries on the chest of the deceased. She further stated that the wife of the appellant had also assaulted her. Though this witness was cross-examined, on behalf of the defence, no contradiction could be elicited to render her evidence disbelievable. Her evidence, that the appellant had stabbed her son i.e. the deceased, causing injury on his person, remained undemolished. 26. She further stated that the wife of the appellant had also assaulted her. Though this witness was cross-examined, on behalf of the defence, no contradiction could be elicited to render her evidence disbelievable. Her evidence, that the appellant had stabbed her son i.e. the deceased, causing injury on his person, remained undemolished. 26. Supporting the evidence of PW 5, Sri Nepal Mandal, who deposed as PW 2, stated that, on the date of occurrence at about 3.30 p.m., he visited the house of the deceased for collecting medicine for dog bite from the mother of the deceased and hearing about the quarrel he proceeded to the place of occurrence and saw the wife of the appellant providing a dao to the appellant and the appellant inflicting blows on the head and chest of the deceased. 27. PW 2 further stated that the mother of the deceased became unconscious. He exhibited the seizure list, as Ext. No. 1, by which police seized the dao from the appellant. This witness, who appears to be an eye-witness, was cross examined on behalf of the defence and he denied the suggestion that the deceased had some relation with extremists and that he died in connection with some other incident. 28. Though PW 2 was cross-examined, at length by the defence, no contradiction could be proved to render his evidence disbelievable. 29. Sri Monai Sarkar, who deposed as PW 1 did not see the occurrence. He saw the dead body of the deceased lying on the road, in front of the house of the accused person. He stated that he noticed injury mark on the hand and the abdomen of the deceased. 30. Sri Sunil Seal (PW 3), whose house was situated across seven houses from the house of the accused person, stated that, on the date of occurrence, hearing about a commotion, he came out from his house and saw the accused running with a dagger. He further stated that he found the dead body of the deceased, lying on the road, near the house of the accused. He also stated that he noticed bleeding injuries on the hand, left side of the chest and on the legs of the deceased. He further stated that police visited the place of occurrence on the next morning and seized a dagger from the house of the accused. He was a witness to the seizure list. He also stated that he noticed bleeding injuries on the hand, left side of the chest and on the legs of the deceased. He further stated that police visited the place of occurrence on the next morning and seized a dagger from the house of the accused. He was a witness to the seizure list. His evidence that he saw the dead body of the deceased, lying on the road near the house of the accused, and the accused running with a dagger remained uncontroverted. 31. From the above discussed evidence, it is found that both PW 2 and PW 5 saw the appellant inflicting blows with a sharp weapon i.e. dagger and that PW 3, who arrived immediately after the incident, saw the appellant running away from the place of occurrence with a dagger, in his hand. The place of occurrence was on the PW road near the house of the appellant. The said evidence adduced by the prosecution witnesses remained undemolished, despite cross examination of the prosecution witnesses aforesaid. 32. From the evidence of PW 5 i.e. the mother of the deceased, it transpires that, prior to the assault made by the appellant, a quarrel had taken place between PW 2, her son Prema Lal Mondal and the deceased regarding uprooting of some trees from the premises of PW5. 33. Both PW 2 and PW 5, who claimed to be eye-witnesses to the incident, stated that the assault was made by sharp cutting weapon. The Medical Officer (PW 8), who performed the autopsy of the dead body, also opined that the deseeded sustained cut injuries, caused by sharp cutting weapon. According to PW 5, who was the mother of the deceased, as soon as the appellant had inflicted stab injury on the chest of her son with a dagger, she had fallen down on the ground. Hence, it appears that she could see one blow being given by the appellant. Her failure to notice other blows, if any, was quite natural inasmuch as she lost her senses. 34. PW 2, who appeared in the place of occurrence at the time of inflicting blows by the appellant on the deceased, stated that the appellant had given blows on the head and left side of the chest. 35. Her failure to notice other blows, if any, was quite natural inasmuch as she lost her senses. 34. PW 2, who appeared in the place of occurrence at the time of inflicting blows by the appellant on the deceased, stated that the appellant had given blows on the head and left side of the chest. 35. PW 1, who arrived at the place of occurrence after the incident, saw the injuries on the hands, legs and abdomen of the deceased. PW 2 did not state anything regarding injury on the abdomen. Hence, though PW 1 did not state anything about the injury on the head, the PW 3 noticed injuries on the hand, left side of the chest of the deceased, wherefrom blood was oozing out. Of course, PW 5 noticed one cut injury on the left hand and stab injury on the chest. 36. The Medical Officer (PW 8), on his examination of the dead body, found the following injuries- 1. Incised wounds size 11.6 cm x 3 cm x bone deep under 1.7 cm right shoulder placed in (illegible) to plane extending from right to left. 1st and 2nd ribs were cut, underneath the wound, auxiliary vessels were cut underneath the wound. 2. Incised wound 8.3 cm x 2.2 cm x muscle deep in the lateral side of the wrist joint. Incised wound 4 cm x 2.3 cm x muscle deep in right prominence. Incised wound in the palmer aspect of the right middle finger -2 cm x.6 cm x muscle deep, placed transversely. 3. Incised wound 5.5 cm x 3 cm x muscle deep in the palmer aspect of the left side of the hand. Incised wound 3 cm x 0.5 cm x muscle deep in the middle side of the left elbow joint. 4. Stab wound 2.5 cm x 0.5 cm x muscle deep in the posterior aspect and middle of the lift thigh. 37. From the above medical evidence, it is found that the deceased sustained injuries on his hands, legs, shoulder extending from right to left i.e. near the chest area. 38. Considering the facts and circumstances of this case, the witnesses, in the present case, who appeared in the place of occurrence, at different stages of the occurrence, cannot be accepted to give similar description regarding nature and number of the injuries inflicted on the deceased. 38. Considering the facts and circumstances of this case, the witnesses, in the present case, who appeared in the place of occurrence, at different stages of the occurrence, cannot be accepted to give similar description regarding nature and number of the injuries inflicted on the deceased. The evidence given by the said prosecution witnesses that the deceased sustained injuries on various parts of his body and that the injuries were caused by sharp cutting weapon stood corroborated by each other. The discrepancy found in the ocular evidence of the witnesses regarding the places of injury appears to be minor discrepancy. Their evidence in this regard remained undemolished. Both PW 2 and PW 5, who appeared to be the eye witnesses to the occurrence, corroborated each other's evidence, on material point i.e. regarding the assault made by the appellant with a sharp cutting weapon on the deceased. No contradiction has been brought out to discredit their said evidence. 39. In view of the above discussed evidence, we find sufficient corroboration in the evidence, given by the above stated witnesses, on material point. The said evidence inspires confidence to believe that, none other than, the appellant had assaulted the deceased on the fateful night and that the deceased died due to said injuries inflicted by the appellant. From the medical evidence it appears that except injury No. 1 other injuries were not vital part The medical officer further opined that the victim would have survived had he been given timely medical treatment. Therefore, it appears that death was not caused, by the said injuries, instantly. 40. From the evidence of PW 5, i.e. the mother of the deceased, it appears that the appellant picked up a quarrel with PW 5 and her younger son namely Sri Premalal Mondal and that the appellant had assaulted Sri Premalal Mondal with dagger, which was caught hold of by her eldest son i.e. the deceased and he sustaining cut injury, in his hand, released the dagger. According to PW 5, the dagger, being so released and the appellant thrusted the same into the chest of the deceased. 41. According to PW 5, the dagger, being so released and the appellant thrusted the same into the chest of the deceased. 41. From the above, it appears that the said incident was followed by a quarrel, which took place between the appellant, PW 5 and PW 5's youngest son i.e. the younger brother of the deceased, regarding a land dispute and the deceased sustained injury due to his sudden appearance and intervention in the said quarrel. 42. Had the deceased not appeared, in the place of occurrence, he would not have sustained the said injuries. Therefore, the incident took place in a moment following the quarrel between the PW 5 and her son, on one side and the appellant on the other side. 43. The above facts and circumstances, coupled with the injuries sustained by the deceased, in our considered opinion, lead to hold that the appellant had no pre-meditation or intention to cause the death of the deceased. He, in fact, assaulted the deceased in a spur of moment and passion due to the quarrel aforesaid. Therefore, as the appellant had no intention to cause death of the deceased, he cannot be held guilty of the offence under Section 302 IPC. Therefore, the conviction and sentence of life imprisonment, under Section 302 IPC cannot be maintained. Accordingly, we set aside the same. 44. From the above discussed ocular evidence and the medical evidence, it appears that the deceased sustained penetrating wound on his chest i.e. extending from right to left, cutting the 1st and 2nd ribs and the auxiliary vessel underneath the wound. Admittedly, the weapon used was a sharp cutting weapon i.e. a lethal weapon and the injury No. 1 was inflicted on vital part of the body. Other injuries were not fatal wounds. The nature of fatal injury, the part of the body on which the same was inflicted and the weapon used indicate that, though the appellant had no intention to cause death of the deceased, he had inflicted the injury No. 1 with the knowledge that the same was likely to cause death. The deceased sustained the injuries on his head and the same was caused with a dagger. In our considered opinion, the offence committed by the appellant will fall under Section 304 Part-II IPC. 45. Therefore, the conviction and sentence under Section 302 IPC are modified to one under Section 304 Part-II IPC. The deceased sustained the injuries on his head and the same was caused with a dagger. In our considered opinion, the offence committed by the appellant will fall under Section 304 Part-II IPC. 45. Therefore, the conviction and sentence under Section 302 IPC are modified to one under Section 304 Part-II IPC. Accordingly, we sentence the appellant to suffer imprisonment for a period of 8 (eight) years. We make no interference in respect of the fine amount. Return the LCR.