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2014 DIGILAW 988 (GAU)

NRIPEN DAS v. STATE OF ASSAM

2014-11-13

C.R.SARMA, P.K.SAIKIA

body2014
ORDER (ORAL) (C.R. Sarma, J) This appeal is directed against the judgment and order, dated 06.07.2011, passed by the learned Additional Sessions Judge (FTC) No. 1, Kamrup, Guwahati, in Sessions Case No.121(K) of 2008, whereby the learned Sessions Judge convicted the appellant, under Sections 302 of the Indian Penal Code (for short, IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs.10,000/-, in default, suffer simple imprisonment for another period of one year. (2) The learned Sessions Judge directed that the appellant would be entitled to set off under Section 428 of the Code of Criminal Procedure (for short, Cr.P.C.) in respect of the period, already undergone by him. (3) Aggrieved by the said conviction and sentence, the convicted person, as appellant, has preferred this appeal, from jail. As there was none to represent the appellant, Ms. S. Roy, learned Counsel, has been appointed as the Amicus Curiae to represent the appellant. (4) The prosecution case, in brief, is that, on 31.07.2006, at about 2 P.M., when the wife (hereinafter called the ‘deceased’) of the informant was taking rest in her house, after taking lunch, the appellant picked up a quarrel with her in connection with his marriage and inflicted ‘dao’ blows on the neck of the deceased causing injuries to her person and she succumbed to the injuries. The informant, i.e. the husband of the deceased, who was not present at the time of the occurrence, after his arrival at his house, came to know about the occurrence from his daughter Smti Tarulata Das (PW-2) and he lodged the FIR (Ext. No. 1) with the Police. (5) On receipt of the FIR, Police registered a case, being Hajo P.S. Case No. 140/2006, under Section 302 IPC and launched investigation into the matter. The accused, on being apprehended by the villagers, was handed over to the Police. (6) During the course of investigation, I.O. recorded the statement of the witnesses, prepared the inquest report, forwarded the dead body for post mortem examination and took the accused person into custody. (7) At the close of the investigation, Police submitted charge-sheet under Section 302 IPC, against the appellant. (6) During the course of investigation, I.O. recorded the statement of the witnesses, prepared the inquest report, forwarded the dead body for post mortem examination and took the accused person into custody. (7) At the close of the investigation, Police submitted charge-sheet under Section 302 IPC, against the appellant. The offence, being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 1st Class, Hajo committed the case to the Court of Sessions and the learned Sessions Judge, in due course, framed charge under Section 302 I.P.C. against the appellant. The charge was read over and explained to the appellant, to which he pleaded not guilty. He claimed for trial. (8) In order to prove its case, prosecution examined, as many as, 7 (seven) witnesses, including the Medical Officer (PW-6) and the Investigating Police Officer (PW-7). (9) At the end of the examination of the prosecution witnesses, the accused person was examined, under Section 313 Cr.P.C. He denied the allegations, brought against him. Though the accused initially expressed his desire to adduce defence evidence, he failed to do so. (10) Considering the evidence, on record, the learned Sessions Judge, convicted and sentenced the appellant, as indicated above. (11) Ms. S. Roy, learned Amicus Curiae, taking us through the evidence, on record, has submitted, that there is no substantive and convincing evidence, against the appellant and that the learned Sessions Judge committed error by convicting the appellant. It is also submitted that except the oral evidence, given by the PW-2 and the extra judicial statement, made by PW-4, the prosecution failed to adduce any direct evidence regarding involvement of the appellant. It is further submitted that the evidence of PW-2, who claimed to be an eye witness, suffers from major contradiction, on vital point and as such, her statement is not believable. (12) Referring to the evidence of PW-4 i.e. the father of the accused, the learned Amicus Curiae has submitted that the appellant was suffering from mental illness and as such he was entitled to the benefits provided by Section 84, IPC. In view of the above, the learned Amicus Curiae has submitted that the impugned judgment and order is not maintainable and as such, the appellant is entitled to be acquitted. (13) Controverting the said argument, advanced by the learned Amicus Curiae, Ms. In view of the above, the learned Amicus Curiae has submitted that the impugned judgment and order is not maintainable and as such, the appellant is entitled to be acquitted. (13) Controverting the said argument, advanced by the learned Amicus Curiae, Ms. S. Jahan, learned Additional Public Prosecutor, has submitted that there are sufficient substantive evidence regarding involvement of the appellant with the death of the deceased and that the learned Sessions Judge committed no error by recording the conviction and the sentence aforesaid. (14) Ms. S. Jahan, learned Additional Public Prosecutor, drawing our attention to the evidence of PWs 2 & 4, has submitted that PW-2 i.e. the daughter of the deceased clearly stated that she had seen the appellant inflicting ‘dao’ blows, resulting death of the deceased. It is further submitted that the father of the appellant stated that the appellant had made extra judicial confession and that the said evidence, given by the PW-4, suffers from no illegality and irregularity. (15) In view of the above, the learned Additional Public Prosecutor, referring to the evidence of PW-5, who was a co-villager, has submitted that the said witness clearly stated that the appellant was a person with bad temper and that he did not suffer from any mental abnormalities. It is also submitted that the defence failed to substantiate the plea of insanity and as such, the appellant was not entitled to the benefits of Section 84 IPC. (16) In the attending facts and circumstances of this case as well as the evidence, on-record, the learned Additional Public Prosecutor has submitted that the prosecution could successfully established that none other than the appellant had inflicted the fatal blows causing the death of the deceased. Further, the learned Additional Public Prosecutor has contended that the impugned judgment and order does not suffer from any illegality or infirmity requiring interference by this Court. (17) Having heard the learned Counsel, appearing for both the parties and carefully perusing the evidence, on-record, we find that there is no dispute that the deceased i.e. wife of the informant, succumbed to the injuries sustained by her, on 31.07.2006. (17) Having heard the learned Counsel, appearing for both the parties and carefully perusing the evidence, on-record, we find that there is no dispute that the deceased i.e. wife of the informant, succumbed to the injuries sustained by her, on 31.07.2006. The Medical Officer (PW-6), who performed the post mortem examination, in respect of the dead body of the deceased, vide GD Entry No. 935 dated 31.07.2006, stated that he found the following injuries :- Injuries:- 1) An incised cut wound present on right lateral side of neck, lying transversely anterior and 3.5 Cm. from middira and 5.5 Cm. from right master process. The wound is 5 x 5 x 3.5 Cm. in size, margines well defined. Clean cut regular ante mortem blood clotes adherent to the margines, underlined soft tissues, vessels, nerves and clean cut. Cartina is exposed. 2) An incise cut wound present over, left shoulder and ante mortem aspect lying obliquely medial end lying 4 c.m. from left clavical, measuring 4 x 3 x 0.5 Cm. emposens underlying subcutting tissues/ Antemortem blood clots adherent to the margines.” The Medical Officer opined that the death of the deceased was caused due to hemorrhage and shock resulting from the injuries. He opined that the injuries were ante mortem, caused by sharp weapons and homicidal in nature. He exhibited the post mortem report as Exhibit No. 2 and his signature, thereon, as Exhibit No. 2(1). (18) From the above medical evidence, it appears that the deceased sustained injuries on her neck, which is a vital part of the body and her left shoulder and the said injuries were caused by sharp cutting weapons. (19) The daughter of the deceased, who appears to be the eye witness, deposed as PW-2. She stated that hearing alarm, raised by her mother, she rushed to the place of occurrence and found the accused inflicting cut injuries with a dagger. She further stated that the deceased, after inflicting blows with a dagger, left for his house and confined himself, therein. This witness informed her father about the occurrence and she was duly cross-examined on behalf of the defence. She denied the suggestion that she did not state before the Police that she had seen the occurrence herself. She further stated, in her cross-examination, that she had never seen the appellant behaving abnormally. This witness informed her father about the occurrence and she was duly cross-examined on behalf of the defence. She denied the suggestion that she did not state before the Police that she had seen the occurrence herself. She further stated, in her cross-examination, that she had never seen the appellant behaving abnormally. (20) PW-1 i.e. the husband of the deceased, who lodged the FIR, on the next date, supporting the evidence of his daughter (PW-2), stated that he came to know about the incident from her daughter i.e. PW-2. Exhibiting the FIR, lodged by him, as Exhibit No. 1, PW-1 stated that his said daughter told him that she had seen the accused causing death of her mother. This witness further stated that he found the dead body of his wife lying in his house and that Police, on their arrival, conducted inquest in respect of the dead body. (21) Though PW-1 was cross examined, on behalf of the defence, no contradiction could be elicited to render his evidence disbelieve. This witness, in the FIR (Ext. 1), clearly stated that he was reported by his daughter i.e. PW-2 that her mother was killed by the appellant. Hence, we find sufficient corroboration in the evidence of P1 and PW-2, on material point. (22) The I.O. deposed as PW-7. In his cross-examination, he stated that PW-2 did not tell him that she had seen the appellant inflicting cut injuries, on her mother. Except the said omission, there is no other major contradiction in respect of the evidence given by PW-2. The omission can’t negate the forceful evidence given by PW-2. Therefore, we find sufficient reason to disbelieve the evidence of PW-2, who was the daughter of the deceased. It can not be believed that the daughter of the deceased, would have falsely implicated some other innocent person leaving the actual culprit. (23) Sri Biren Das, who was the son of the deceased, deposed as PW-3. He stated that, on his arrival at home, he could see his mother lying in injured condition. He further stated that he was reported by his sister, namely, Tarulata Das (PW-2) that the appellant had inflicted cut injury on his mother. According to this witness, Police took the dead body of the deceased for post mortem examination and arrested the appellant from his house. (24) The father of the appellant, namely, Sri Bhagaban Das, deposed as PW-4. He further stated that he was reported by his sister, namely, Tarulata Das (PW-2) that the appellant had inflicted cut injury on his mother. According to this witness, Police took the dead body of the deceased for post mortem examination and arrested the appellant from his house. (24) The father of the appellant, namely, Sri Bhagaban Das, deposed as PW-4. He stated that he found the dead body of the deceased lying in her house with cut injuries in her neck. He further stated that the son and the daughter of the informant had reported him that his (PW-4’s) son i.e. the appellant had inflicted cut injury on the deceased. The PW-4 further stated that, on being asked, his son i.e. the appellant confessed that he had inflicted the cut injuries. According to this witness, the appellant was confined in the house and after arrival of the Police, in the place of occurrence, he was handed over to Police. In his cross-examination, he stated that the appellant was not mentally sound and that he got treatment at Guwahati Medical College Hospital. (25) Sri Gargaram Das, a co-villager, deposing as PW-5, has stated that he knew the appellant since long and that the appellant was a bad tampered person. This witness clearly stated that he did not notice any abnormality in respect of the appellant. (26) The accused also, in his statement, recorded under Section 313 Cr,P.C., did not take the plea of insanity. The father of the appellant, who stated that the appellant was suffering from mental illness, failed to adduce any medical evidence in support of the said plea. The evidence of PW-5 negates the evidence of PW-4 regarding mental condition of the appellants. (27) Law is well settled that, in order to get the benefit of Section 84, IPC, i.e. insanity, the person taking the said plea is required to prove the same by adducing sufficient evidence. (28) In the present case, no evidence has been adduced to substantiate the said claim. Rather, the evidence of PW-5, who was a co-villager, belies the evidence of PW-4 regarding insanity of the appellant. (28) In the present case, no evidence has been adduced to substantiate the said claim. Rather, the evidence of PW-5, who was a co-villager, belies the evidence of PW-4 regarding insanity of the appellant. (29) From the evidence of the prosecution witnesses, it has surfaced that, on 31.07.2006, the deceased while taking rest, in her house, was attacked by the appellant and he inflicted blows with a dagger i.e. sharp weapon on her neck, which is a vital part of the body, thereby causing injury on her person. From the said medical evidence, it appears that the injuries, sustained by the deceased, were caused by a sharp cutting weapon. All the prosecution, witnesses, more particularly, the eye witness (PW-2) i.e. daughter of the deceased, clearly stated that the appellant had inflicted blows with a dagger i.e. sharp cutting weapon. (30) The I.O., who deposed as PW-7, stated that he could recover the weapon from behind the house of the appellant. The recovery of the dead body with cut injuries from the place of occurrence, the finding of sharp cutting weapon behind the house of the appellant, the oral evidence given by PW-2 and PW-4 clearly indicate that the appellant had committed the alleged offence. (31) In the present case, the said extra judicial confession was made before, none other than, the father of the appellant and the said father of the appellant, in clear terms, stated that the appellant had confessed that he had committed the alleged offence. We find no reason not to believe the evidence of PW-4 in this regard. Apparently, there was no compulsion on the part of the appellant to make such confessional statement. Also there appears to be no reason, on the part of the said father to falsely implicate his son. The fact that the extra judicial confession was made before the father of the appellant and the convincing evidence, given by the father of the appellant, regarding extra judicial confession, indicates the voluntariness of the maker of the confession. Hence, we find it safe to accept the evidence of PW-4 regarding extra judicial confession. The said extra judicial confession supports the oral evidence, given by the eye witness i.e. PW-2. Hence, we find sufficient corroboration in the evidence of PW-2. Hence, we find it safe to accept the evidence of PW-4 regarding extra judicial confession. The said extra judicial confession supports the oral evidence, given by the eye witness i.e. PW-2. Hence, we find sufficient corroboration in the evidence of PW-2. (32) From the evidence, on-record, it appears that all the other non official prosecution witnesses appeared in the place of occurrence, immediately after the incident. All of them, in clear term, stated that they came to know that the appellant had caused the death of the deceased. There is nothing, on-record, to find that the said prosecution witnesses had any ill-will or grudge against the appellant, promoting them to falsely implicate him. (33) Therefore, the evidence of the said prosecution witnesses, who stated that they came to know about the involvement of the appellant also lends support to the evidence of PW-2, leading to the conclusion that the appellant had caused the death of the deceased. (34) Considering entire evidence, on-record, we find that the prosecution could successfully establish that the appellant had caused the death of the deceased. There is nothing, on-record, to show that the appellant was provoked by the deceased in any manner. The nature and numbers of the injuries, inflicted by the appellant and the part of the body (neck, a vital part of the body) where was the blows were given indicates that the appellant had the intention to cause the death of the deceased. Therefore, it has been established that the appellant committed the offence under Section 302 IPC. (35) In view of what has been discussed above, we find that the trial Court committed no error by convicting the appellant, under Section 302 IPC and sentencing him as indicated above. Therefore, we find no merit in this appeal requiring interference. The impugned conviction and the sentence are affirmed and upheld. The appeal is dismissed. (36) Before we part with this record, we acknowledge with appreciation the service, rendered by Ms. S. Roy, learned Amicus Curiae. We order that an amount of Rs.7,000/- (Rupees Seven Thousand) be paid to the learned Amicus Curiae by the State, as her remuneration. (37) The LCR be returned.