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2014 DIGILAW 1066 (GAU)

Ramesh Majhi v. State of Assam

2014-12-19

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT C.R. Sarma, J. 1. This appeal is directed against the impugned judgment and order, dated 09.08.2011, passed by the learned Sessions Judge, Dibrugarh in Sessions Case No. 90/2009 (GR. Case No. 2225/2008), whereby the learned Sessions Judge convicted the appellant under Section 302 of the Indian Penal Code (for short IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/- (Rupees two thousand), in default suffer rigorous imprisonment for another period of 6 (six) months. We have heard Ms. K. Goswami, learned Amicus Curiae, appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, appearing for the State respondent. 2. The prosecution case, in brief, is that, on 08.12.2008 at about 4.00 p.m., the informant's (PW 2's) father (appellant) hacked his wife (i.e. the mother of PW 2) to death. The PW 2, on being informed by a neighbourer, about the incident, rushed to his house and found his father charging the villagers with a dao (machete). Out of fear, PW-2 did not dare to enter their premises and informed Mr. Jiten Deka (PW-3), who informed the police. Upon arrival of police, the appellant was apprehended and the machete was taken away. Thereafter, they entered the house and found the dead body of the deceased, lying in injured condition. The FIR (Ext. 4) being lodged by PW 2, Police registered a case and launched investigation into the matter. 3. During investigation, police arrested the appellant, seized the machete, prepared the inquest report, sent the dead body for autopsy and examined the witnesses. 4. At the close of investigation, police submitted charge sheet, under Section 302 IPC, against the appellant. As the offence was exclusively triable by the court of Sessions, the case was committed to the court of Sessions. The learned Sessions Judge, Dibrugarh, framed charge under Section 302 IPC. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 5. The prosecution, in order to prove its case, examined as many as 9(nine) witnesses, as PWs. At the close of evidence for the prosecution, the accused person was examined, under Section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence. 6. Mr. 5. The prosecution, in order to prove its case, examined as many as 9(nine) witnesses, as PWs. At the close of evidence for the prosecution, the accused person was examined, under Section 313 Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence. 6. Mr. K. Goswami, learned Amicus Curiae, appearing for the appellant, taking us through the evidence, on record, has submitted that, there being no direct evidence against the accused, the prosecution failed to prove, beyond all reasonable doubt, that the appellant had killed the deceased. It is submitted by Mr. Goswami that the presence of the appellant outside his house i.e. in his premises, with a machete (dao), charging people by the appellant and finding of the dead body of the deceased inside the house, cannot be sufficient evidence to believe that the appellant had caused the death of the deceased. It is also submitted that that the post crime conduct and behavior of the appellant indicate that he was not mentally sound and as such he was entitled to the benefit under Section 84 IPC. The learned Amicus Curiae has submitted that the impugned judgment and order, not being based on convincing evidence, are not maintainable and as such the appellant is entitled to be acquitted. The learned Amicus Curiae has relied on the following decisions: "1. (2011) 7 SCC 110 : Elavarasan v. State represented by Inspector of Police 2. AIR 1964 SC 1563 : Dahyabhai Chhaganbhai Thakkar v. State of Gujarat. 3. 2012 (5) GIT 785: Manglu Kumar v. State of Assam 4. (2011) 7 SCC 110 : Elavarasan v. State represented by Inspector of Police 5. 2013 (3) GLT 723: Ghana Gogoi v. State of Assam." 7. Controverting the said argument, advanced by the learned Amicus Curiae, Ms. S. Jahan, learned Addl. Public Prosecutor, Assam, has submitted that the circumstantial evidence, revealed by the prosecution witnesses, was sufficient to believe that the appellant had killed his wife i.e. the deceased by inflicting cut injuries on her with the seized machete. It is also submitted that the defence failed to prove that the appellant, at the relevant time, was mentally unsound and as such he is not entitled to the benefits, under Section 84 IPC. Supporting the impugned judgment and order, the learned Addl. It is also submitted that the defence failed to prove that the appellant, at the relevant time, was mentally unsound and as such he is not entitled to the benefits, under Section 84 IPC. Supporting the impugned judgment and order, the learned Addl. Public Prosecutor has submitted that the learned trail Judge committed no error by convicting and sentencing the appellant under Section 302 IPC. The learned Additional Public Prosecutor has relied the following decision. "1. (2011) 11 SCC 495 : Surendra Mishra v. State of Jharkhand" 8. Having heard the learned counsel, for both the parties, we have carefully perused the evidence, on record. There is no dispute regarding the death of the deceased i.e. the wife of the appellant, on 08.12.2008. The written FIR (Ext. No. 1) has been lodged by the son (PW-2) of the deceased and the appellant, on the next day. Prior to lodging of the said FIR, police was informed by Mr. Jiten Deja (PW 3) and, on being so informed, Police, making GD. Entry No. 195, dated 08.12.2008, visited the place of occurrence and found the dead body of the deceased lying in the verandah of the house of the appellant. After preparing the inquest report (Ext. No. 2), police sent the dead body for autopsy and Dr. Subha Jyoti Deka (PW1) performed the postmortem examination of the dead body of the deceased. He has exhibited the post mortem report as Ext. No. 1. The Medical Officer, who performed autopsy, on the dead body of the deceased, on 09.12.2008, found the following injuries:-- 1. "Incised wound of 10 x 1 c.m. present over the right side of occipital region obliquely placed bone deed with bone fragment coming out ex-posing Dura, reddish, clean cut margin. 2 Incised wound over left ear horizontally placed 10 x 1 cm reddish in colour, clean cut margin. 3. Incised would of 11 x 20 present over-left side of scab 3'5 c. below injury No. 2 obliquely placed from 3 cm midline downward and back-ward up, to the back of neck parallel to injury No. 2. Reddish in colour. 4. Incised wound 7 x 2 cm. clean cut margin over right side of neck 0.5 c.m. midline, clean cut trachea, carotid vessel and muscles. Reddish in colour. 5. Reddish in colour. 4. Incised wound 7 x 2 cm. clean cut margin over right side of neck 0.5 c.m. midline, clean cut trachea, carotid vessel and muscles. Reddish in colour. 5. Incised wound of 9 cm x 2.5 cm over right side of occipital region and reddish in colour and clean cut margin 7 cm. below the injury No. 1. 6. Incised wound of 7 x 3 cm present over the back of neck on 4th vertebrae, clean cut margin ,7 cm below with a sicle over the Vertebrae. Reddish in colour. 7. Multiple incised wounds over the left back of the shoulder in an area of 10 x8 cm, clean cut muscle deep. Reddish in colour. 8. Skull-Clean cut over the right side of occipital region with missing of bone 8 x 5 cm region exposing dura." He opined: "death was due to shock and haemorhage as a result of injuries sustained as described. All injuries are instantaneous and caused by sharp cutting weapon and homicidal in nature. The time since death, approximately 24 to 36 hours at the time of post-mortem examination. The injury No. 1 to 4 are individually sufficient to cause death of a person in ordinary course of nature." The said Medical Officer exhibited the postmortem report as Ext. No. 1 and his signature as Ext. 1(1). The cross-examination of the said Medical Officer (PW1) was declined by the defence. 9. From the above unchallenged medical evidence, it is found that the deceased sustained multiple cut injuries, caused by sharp cutting weapon, on the previous day i.e. on 08.12.2008 and she died due to the said injuries. 10. Now the question is whether the appellant had inflicted the said injuries and thereby caused the death of the deceased, 11. As revealed from the record, none of the prosecution witnesses saw the appellant inflicting the injuries. All of them appeared in the place of occurrence, after the incident 12. Sri Dipak Majhi son of the appellant and the deceased deposed as/PW 2. He stated that he came to know about the incident after the occurrence. What the PW 2 saw was that the appellant was standing with a dao (a machete) and charged the witnesses, who appeared there. Sri Dipak Majhi son of the appellant and the deceased deposed as/PW 2. He stated that he came to know about the incident after the occurrence. What the PW 2 saw was that the appellant was standing with a dao (a machete) and charged the witnesses, who appeared there. According to PW-2, after the police had arrested the appellant and seized me dao (machete), he (PW 2) along with other proceeded to the house and found the dead body lying inside the house. The evidence of PW 2 indicates that due to fear of the appellant, who was armed with a dao, P.W. 2 and others could not go near the dead body. His said evidence also clearly imply that the dead body was lying inside the house. In his cross examination, this witness stated that he did not knew the name of the informant who had informed him about the occurrence and that he did not know from where the police had seized the dao. This statement of PW 2 negates his earlier version (given, in chief of examination) that a dao was seized and snatched away from the appellant This witness is found to have contradicted his earlier version regarding the seizure of the dao from the appellant The said statement made by PW-2, in his cross examination, does not inspire confidence to believe that the machete was found with the accused. Hence, the evidence of PW-2 that the appellant was armed with a machete is not believable, 13. Though this witness stated that he appellant behaved like an insane person, no substantive evidence could be elicited to show that the appellant was mentally unsound at the relevant time. 14. As held in the case of Surendra Mishra v. State of Jharkhand, (2011) 11 SCC 495 , the accused taking the plea of insanity under Section 84 IPC, has to prove existence of legal insanity, at the relevant time. It is his duty to establish that at the time of commission of offence, he, by reason of un-soundness of mind; was in capable of knowing the nature of the act or that the act he was doing was either wrong OF contrary to law. 15. In the case of Elverson (supra), it has been held that the burden of proving the plea of legal insanity lies on the accused. 15. In the case of Elverson (supra), it has been held that the burden of proving the plea of legal insanity lies on the accused. Section 105 of the evidence Act, which provides the burden of proof of a plea reads as under:-- "105. Burden of Proving that case of accused conies within exceptions,- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1866), or within any special exception or proviso contemned in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances." 16. In the said case, it has also been held that the post event conduct, though, may be relevant to determine the culpability of the offender the light of other evidence, on-record, but the conduct of not fleeing from the place of occurrence would not itself show that the person was insane at the time of commission of the offence. However, the burden of the accused is not the same as the burden of the prosecution to prove the charge against the accused. 17. In the case of Surendra Mishra (Supra) it has been held by the Supreme Court that the person, taking the plea of insanity, has to prove the existence of legal insanity and not medical insanity only. 18. In the case of Manglu Kumar (Supra), a Division Bench this Court held: "(45) In so far second query is concerned, it-may be stated that such a question has been considered many a times by different High Court and Hon'ble Supreme Court as well, without multiplying the decisions render on this count, we may very well referred to the decision of Hon'ble Supreme Court rendered in the case of Pratap v. State of UP, reported in AIR 1976 SC 966 . In that case it was held, "that the accused person who pleads an exception is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused" (46) In other, words, an accused who pleads exception is to probabinlise his claim as it has been done in civil case." 19. In the case of Dahyabhai Chhaganbhai (Supra), the Supreme Court observed: "9. When a plea of legal insanity is set up, the court has to consider whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of Knowing the nature of the act or that he was doing what was either wronger contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when me offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of S. 84 of the Indian Penal Code can only be established from the circumstances which proceeded, attended and followed the crime." 20. From me above there is no difficulty in understanding that the accused, in order to get the benefit under Section 84 IPC has to prove that at the relevant time he was suffering from legal insanity, for which he did not know what was wrong and what was right. 21. In the present case the defence tailed to adduce any evidence to support the said plea of insanity. Though PW2 stated that the accused behaved like an insane, no evidence has been adduced to show that he was undergoing any medical treatment regarding his mental condition and that he was not in a position to determine the right and wrong act. The statement of PW 2, that the appellant was behaving like an insane, per-say does not indicate that he was suffering from legal insanity. The evidence of PW 4 that the appellant, behaved like a mad man is not sufficient to hold that the appellant was suffering from legal insanity at the time of the occurrence. 22. The statement of PW 2, that the appellant was behaving like an insane, per-say does not indicate that he was suffering from legal insanity. The evidence of PW 4 that the appellant, behaved like a mad man is not sufficient to hold that the appellant was suffering from legal insanity at the time of the occurrence. 22. Though PW 4 stated that his father i.e. the appellant was given injection, no medical evidence has been adduced to show that he was suffering from insanity. The bald statement, made by PW 5, PW6 and PW 7, that the appellant was not mentally unsound, don't lead to conclude that the appellant was suffering from legal insanity. The I.O. (P.W 9), who took the appellant into the custody, immediately after the incident, stated that the appellant was not a psychiatric patient. 23. In view of the above evidence, we do not find sufficient evidence to believe that the appellant was suffering from legal insanity at the relevant time. Hence, the benefit of Section 84 IPC can't be extended to the appellant. 24. As discussed earlier, with regard to the involvement of the appellant with the death of the deceased, there is no direct evidence. None of the witnesses saw the appellant giving fatal blows. According to PW 2 i.e. the informant, son of the deceased the appellant was found with a dao, prior to his arrest by Police. This witness stated that the dead body was found/lying inside the house, PW 4, another son of the deceased, PW 5, a brother of the appellant and PW 6, co villager, stated that the dead body was lying in the kitchen. But the I.O. (PW 9) found the dead body in the Verandah. The sketch map (Ext. 6) prepared by the I.O. clearly indicates that the house (gha), the kitchen (ga) and the Verandah (ja) of the appellant. The said places are found to be distinct and separate. Therefore, the kitchen, the inside of the house and the verandah cannot be confused to be the same place. Those were different places of the housed. 25. The said three different versions given by PW 2, PW 5; PW 6 and PW 9 regarding the places, where the body of the deceased was found raises doubt about the veracity of their evidence. ... 26. Those were different places of the housed. 25. The said three different versions given by PW 2, PW 5; PW 6 and PW 9 regarding the places, where the body of the deceased was found raises doubt about the veracity of their evidence. ... 26. That apart, PW 2, PW 5 and PW 8 were the witnesses to the Ext. No. 5 i.e. the seizure list, by which the dao was seized PW 8 stated that police obtained his signature in a paper i.e. Ext. No. 5. He did not state as to what was seized vide the Ext. No. 5. Rather, he stated that he did not know about the occurrence, on the said date and that, on the next day, he came to know that a murder had taken place. Hence, PW 8 did not whisper anything about the accused. This evidence does not indicate that the machete (dao) was found in the hand of the appellant PW 5 stated that the dao was found in the hand of the accused. But PW 2 again, in his cross-examination, stated that he did not know from whom police had seized the dao. This self contradictory statement of PW 2 raises doubt about the prosecution version regarding the seizure of the dao from the accused. The said contradictory evidence, given by PW 2 and PW 5, does not inspire confidence to believe their evidence that the appellant was found with the machete in his hand. Hence, we are inclined to hold that the prosecution failed to establish that the machete was found in the hand of the accused. Therefore, the prosecution version that the appellant was holding a machete is found to be doubtful. 27. The seized machete i.e. the material Ext. 1 has not been sent for forensic examination to ascertain if the same contained human blood and if so, whether the same was the blood of the deceased. On the other hand, the I.O., who seized machete, clearly stated that the same was not stained with blood. There is nothing to find that the said weapon was washed or cleaned after its use by the appellant The multiple cut injuries sustained by the deceased indicates that the weapon of assault was stained with the blood of the victim. On the other hand, the I.O., who seized machete, clearly stated that the same was not stained with blood. There is nothing to find that the said weapon was washed or cleaned after its use by the appellant The multiple cut injuries sustained by the deceased indicates that the weapon of assault was stained with the blood of the victim. Absence of blood stain in the said machete, which is claimed to be seized from the accused, immediately after the incident that too when he was found standing near the deceased, raises doubt about the use of the same in committing the offence; 28. In view of the above, it will not be safe to conclude that the said weapon was used in causing the fatal injuries. 29. In the case of Ghana Gogoi (Supra), a Division Bench of this court observed: "(29) Having considered the evidence of the prosecution witnesses and, in the light of law on circumstantial evidence, what clearly emerges is that mere is no Witness, who has claimed to have seen the accused- appellant assaulting his wife, Ila Gogoi; The prosecution's case rests, therefore, on circumstantial evidence. (30) There is only one incriminating circumstance appearing against the accused appellant, the circumstance being that the accused-appellant was found standing near his injured wife with a dao in his hand. There is, however, no material, in the evidence of any of the Witness to show that the said dao, which was seen in the hand of the accused, bore any stain of human blood, particularly, the blood of the deceased, Ila Googi. (31) In the circumstances mentioned above, it is not only difficult, but well-nigh impossible to confidently hold that it was the accused- appellant, who had backed his wife to death. The evidence, on record, thus, undoubtedly, gives rise to grave suspicion that the accused-appellant was the one, who had killed his wife; but suspicion, howsoever strong, cannot take place on proof and, in 'such circumstances, the accused- appellant deserved to be accorded benefit of doubt." We respectfully agree with the said view taken by the Division Bench. 30 In the light of the above discussion, in our considered opinion finding of the appellant in his house, where the injured dead body was lying, cannot be sufficient evidence to hold that none other man, the appellant had caused me death of the deceased. 31. 30 In the light of the above discussion, in our considered opinion finding of the appellant in his house, where the injured dead body was lying, cannot be sufficient evidence to hold that none other man, the appellant had caused me death of the deceased. 31. In view of the above decision, the absence of any evidence, regarding use of the seized machete in committing the crime and the presence of the appellant with the machete can't be sufficient evidence to conclude that the appellant had caused the fatal injuries. In order to establish the involvement of the appellant, with the death of the deceased, the prosecution ought to have produced evidence showing the machete was found in the physical possession of the appellant that the same contained blood or any substance indicating use of the same in causing the injuries, sustained by the deceased. In fact, no attempt was made in this regard. 32. Though there is room for suspicion that the appellant had caused the death of the deceased, the suspicion, howsoever strong, cannot take the place of proof and, in such circumstances can not be safely concluded that the appellant caused the death of the deceased. 33. The fundamental principle governing proof, in a criminal trial, is that prosecution is required to prove the guilt of the accused beyond all reasonable doubt. 34. In the present case, none had seen the accused assaulting the deceased. The circumstantial evidence surfaced from the statements of the witness, does not form a complete chain of events, excluding the possibility of innocence of the accused and leading to the only conclusion that none other than the appellant had caused the death of the deceased. In view of the above discussion, we find that the prosecution failed to prove, beyond all reasonable doubt, that the seized machete was found with the accused and that the same was used by the accused as the weapon of assault. In our considered opinion, the accused appellant, in the case at hand is entitled to the benefit of doubt. 35. In view of what has been discussed above, the appeal succeeds. We set aside the impugned conviction and me sentence and acquit the appellant of me offence, which he stands convicted of. He be set at liberty forth with, if not required in connection with any other case. 36. 35. In view of what has been discussed above, the appeal succeeds. We set aside the impugned conviction and me sentence and acquit the appellant of me offence, which he stands convicted of. He be set at liberty forth with, if not required in connection with any other case. 36. Before we part with this appeal, we record, with appreciation, the service rendered by Mr. K. Goswami, as the Amicus Curiae. We direct that an amount of Rs. 7,000/- (Rupees seven thousand) be paid to the learned Amicus Curiae, by the State, as his remuneration. Send back the LCR.