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2014 DIGILAW 996 (GAU)

Sukram Mahali v. State of Assam

2014-11-14

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
Judgment C.R. Sarma, J. 1. This appeal is directed against the judgment and order, dated 04.08.2011, passed by the learned Sessions Judge, Dibrugarh, in Sessions Case No. 115 of 2010. By the impugned judgment and order, the learned Sessions Judge convicted the appellant for the offence u/s. 302 IPC and sentenced him to suffer imprisonment for life and pay a fine of Rs. 3,000/- in default, suffer R.I. for another period of 6 months. Direction was made that the appellant would be entitled to the benefit of set off u/s. 428 Cr.P.C. Aggrieved by the said judgment and order the appellant who has been undergoing imprisonment, has preferred this appeal from the jail. As there was none to represent the appellant, Mr. U. Choudhury, learned counsel has been engaged to represent the appellant. 2. Prosecution case in brief, is that on 23.10.2010 at about 9.30 p.m., the husband (i.e., the deceased) of the informant visited his brother's house for demanding money, which was due to him. On such approach a quarrel took place between the deceased and the appellant and the appellant inflicted dao blows on the deceased and the deceased succumbed to the injuries. The wife of the deceased, as informant, lodged an FIR with the police, on the next day. Police registered a case u/s. 302 IPC and started investigation into the matter. 3. During the course of investigation police prepared sketch map of the Place of Occurrence (Ext. 7) prepared inquest report (Ext. 5) in respect of the dead body of the deceased, forwarded the dead body of the deceased for post mortem examination and examined the witnesses. At the conclusion of investigation, police submitted charge-sheet u/s. 302 IPC. 4. The offence being exclusively triable by the court of Sessions, the learned JMFC, Dibrugarh committed the case to the court of Sessions. Learned Sessions Judge framed charge u/S. 302 IPC, against the appellant. The charge-sheet was read over and explained to the appellant to which he pleaded not guilty. In order to prove its case, the prosecution has examined as many as, 10 witnesses, including the medical officer (P.W. 10), who performed the autopsy and the investigating police officers (PW 9). After examination of the prosecution witnesses, the accused person was examined u/S. 313Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence. 5. In order to prove its case, the prosecution has examined as many as, 10 witnesses, including the medical officer (P.W. 10), who performed the autopsy and the investigating police officers (PW 9). After examination of the prosecution witnesses, the accused person was examined u/S. 313Cr.P.C. He denied the allegations, brought against him and declined to adduce defence evidence. 5. Considering the facts, on record, the learned Sessions Judge found the appellant guilty of the offence u/s. 302 IPC and accordingly recorded the conviction and sentence, as indicated above. 6. Mr. U. Choudhury, learned counsel for the appellant, taking us through the evidence on record, has submitted that there are major contradictions in the evidence of the prosecution witnesses and that the prosecution fail to establish the case, against the appellant, beyond all reasonable doubt. It is submitted that there is no substantive evidence, on record, against the appellant and as such, the learned trial court committed error by recording the conviction and sentence against the appellant. Learned Amicus Curiae, appearing for the appellant, has further submitted that impugned conviction and sentence are not maintainable and as such, the appellant is entitled to be acquitted. 7. Refuting the said argument, advanced by the Amicus Curiae, Ms. S. Jahan learned Addl. P.P. has submitted that there is sufficient corroboration in the evidence, given by the prosecution witnesses, more particularly, in the evidence of PW-1 and PW-2, who are the eye witnesses to the occurrence. It is submitted that the prosecution witnesses aforesaid could successfully, establish that, none other than, the appellant had caused the death of the deceased by inflicting dao blows, on his person. It is submitted that the medical evidence, adduced by PW-10, also supports the evidence given by PW-1 and PW-2. 8. Learned Addl. P.P., has further submitted that both the PW-1 and PW-2 clearly stated that the deceased had visited the house of the appellant in connection with demand of money, which was due to the deceased and that his dead body was found in front of the house of the appellant. It is contended by the learned Addl. P.P., that the said evidence successfully supports the oral evidence given by PW-1 and PW-2 and as such, the prosecution successfully proved that the appellant had inflicted dao blows on the deceased resulting his death. 9. Learned Addl. It is contended by the learned Addl. P.P., that the said evidence successfully supports the oral evidence given by PW-1 and PW-2 and as such, the prosecution successfully proved that the appellant had inflicted dao blows on the deceased resulting his death. 9. Learned Addl. P.P., supporting the impugned judgment and order, has submitted that the learned Sessions Judge committed no error by convicting and sentencing the appellant. Having heard the learned counsel for the parties, we have carefully perused the evidence, on record. 10. PW 1, Smti. Sakuntala Mahali, wife of the deceased lodged the FIR (Ext. 1). She clearly stated that her house was situated adjacent to the house of the appellant and that her husband, on the fateful night, had gone to the house of the appellant for realizing money, which was due to him. She further stated that the appellant inflicted dao blows on her husband and she raised hue and cry. According to PW-1, the deceased succumbed to the injuries sustained at the hands of the appellant. PW-1 categorically denied the suggestion, put to her, on behalf of the defence, that the appellant was assaulted by her deceased husband with a rod and that the appellant, in self defence, had snatched the rod from the deceased and hit her husband. This suggestion indicates that the appellant assaulted the deceased. PW-1 further stated that her daughter, namely Ms. Anjali Kahali (PW-2) also witnessed the incident. The daughter of the deceased, namely Ms. Anjali Mahali who was a minor daughter supported the evidence given by the PW 1. The said minor girl deposed that, hearing alarm raised by her mother, she saw the appellant inflicting dao blows on her father. She further stated that due to the dao blows, inflicted by the appellant, her father had fall down and he was taken to the hospital, wherein he was declared dead. She also stated that she was taken to the Magistrate for recording her statement u/s. 164 Cr.P.C., she proved the said statement as Ext. 3. However, in her cross examination, she stated that her father had gone to the house of the appellant with a lathi in his hand. 11. From the above evidence of PW 1 and PW 2, it appears that both of them had witnessed the occurrence which took place just adjacent to their house. The sketch map i.e., Ext. 3. However, in her cross examination, she stated that her father had gone to the house of the appellant with a lathi in his hand. 11. From the above evidence of PW 1 and PW 2, it appears that both of them had witnessed the occurrence which took place just adjacent to their house. The sketch map i.e., Ext. 7 indicates that the houses of the appellant and the deceased were situated adjacent to each other and they had common open space. From the sketch map it appears that the dead body of the deceased was lying in the courtyard of the appellant. The evidence of PW 1 and PW 2, who claimed to be the eye witnesses, remained undemolished. 12. The sketch map indicates that the house of the appellant and the deceased were situated by the side of the road, in front of their house and they used to use the same. In view of the above there is no difficulty in understanding that the Place of Occurrence was visible from the courtyard of the deceased and as such, it is believable that the PW-1 and PW-2 could witness the incident. Both PW-1 and PW 2 have exhibited the statements made by them u/s. 164 Cr.P.C., as Ext.-2 and Ext.-3 respectively. Their statements made u/s. 164 Cr.P.C., support the oral evidence given by PW-1 and PW 2, during the trial. 13. Carefully scrutinizing the evidence of PW 1 and PW 2, we find sufficient corroboration in their evidence. PW 3 Mr. Terha Lohar, a Chowkidar of the garden and close door neighbor of the appellant and the deceased, on being informed by PW1, visited the place of occurrence and found appellant standing, on the road, along with his wife and children. 14. PW 3 stated that on being asked by him as to what had happened, the appellant told him "go and see yourself. According to PW 3, on being so said by the appellant, he focused his torch light and saw the dead body of the deceased lying in the gateway of the deceased and the appellant. He stated that he saw cut injury on the head of the deceased. This witness was also cross examined by the defence, but his evidence remained undemolished. He stated that he saw cut injury on the head of the deceased. This witness was also cross examined by the defence, but his evidence remained undemolished. It is found from the evidence of PW 3 also that the appellant was found, in front of his house situated on the road side and on being asked by PW 3 the appellant had pointed to the dead body of the deceased. The houses of the deceased and the appellant were situated by the side of the road and their houses were adjacent. Therefore, the presence of the appellant, on the road i.e., in front of his house and the dead body of the deceased, on the gateway of the deceased, immediately after the incident coupled with the reply given by the accused support prosecution version regarding involvement of the appellant with the death of the deceased. 15. Smri Sawaswati Kalandi (PW 4) stated that she had no knowledge as to how the deceased died. Sri Ranjit Goala (PW 5) stated that he was informed by the wife of the deceased that her husband was killed by some person. On being so informed, this witness visited the place of occurrence and found the deceased lying on the road, in front of his house. It has been found that the houses of both the appellant and the deceased were situated by the side of the corner road and their houses were adjacent. 16. Sri Purna Kanta Goala (PW 6), who knew both the appellant and the deceased, deposed that he came to know that the appellant had killed the deceased. PW-7, Sri Raju Bowri was a witness to the seizure list, by which the dao was seized by the police from the house of the appellant. 17. According to PW 8, who was one of the investigating officers, visited the medical college, on the basis of GD Entry No. 605 on 24.05.2010 and he prepared the inquest report in respect of the dead body of the deceased. He exhibited the inquest report as Ext 5. Sri Pradip Kr. Bora, (PW 9), Inspector of Police, conducted the remaining part of the investigation. He submitted the charge-sheet and exhibited the same as Ext. 8. 18. He exhibited the inquest report as Ext 5. Sri Pradip Kr. Bora, (PW 9), Inspector of Police, conducted the remaining part of the investigation. He submitted the charge-sheet and exhibited the same as Ext. 8. 18. Though the investigating officers were cross examined, on behalf of the defence, no major contradictions, in respect of the evidence adduced by the prosecution witnesses, could be brought out to make their evidence disbelievable. The Medical Officer, who performed the post mortem examination in respect of the dead body of the deceased on the basis of GD Entry No. 605, dated 25.05.2010 and on being identified by Constable No. 1355, stated that he found following injuries on the dead body. "Injuries 1. Incised wound clean cut margins, inverted margins of 6 cm x 4 cm over left side of the neck bone depth. Muscles, carotid with carotid artery and veins are completely cut.' Obliquely placed to the medical end, reddish in colour. 2. Incised wound of 6 cm x 1 cm over right hand, reddish in colour. Obliquely placed with bone cut. 3. Incised wound of 6 cm x 1 cm over right side of the occipital region. Obliquely placed clean cut inverted margins. Explanation of Cranium and Spinal Canal: Scalp-- Occipital haematoma left side. Skull Nick over the occipital bones of 6 cm in length." 19. The Medical Officer opined that the deceased died due to shock and hemorrhage as a result of the injury sustained by him. According to the Medical Officer all the injuries were ante mortem caused by sharp cutting weapon and homicidal in nature. 20. From the above evidence, on record, it is clearly found that the deceased died due to injuries sustained by him, on the night of 23.05.2010. The Medical evidence that the injuries were caused by sharp cutting weapon, lends supports in favour of the evidence given by PW 1 and PW2, who were the eye witnesses to the incident. They clearly stated that the appellant had inflicted dao blows on the deceased, causing his death, on the fateful night. The evidence of PW 1 PW 2 regarding injuries sustained by the deceased and finding of the dead body in the court yard that is in the gateway of the appellant has been supported by the other independent witnesses i.e., PW 3 and PW 5. The evidence of PW 1 PW 2 regarding injuries sustained by the deceased and finding of the dead body in the court yard that is in the gateway of the appellant has been supported by the other independent witnesses i.e., PW 3 and PW 5. Hence there is corroboration in the evidence of PW 1 and PW 2. 21. From the evidence of PW 1 and PW 2 it appears that the deceased was the elder brother of the appellant and they used to live in adjacent houses. According to PW 1 the deceased was required to pay a sum of Rs. 10,000/- as compensation for causing fracture of her hand. According to PW1 the deceased visited the house of his said younger brother for realizing the said amount and in connection with demand of the said money a quarrel had taken place between the two brothers i.e., the appellant and the deceased. In view of above discussion we find that it has been established, beyond all reasonable doubt, that the appellant was the perpetrator of the crime resulting the death of the deceased. 22. PW 2 was the minor daughter of the deceased, she in her cross examination clearly stated that her father had visited the house of the appellant with a lathi in his hand. This evidence regarding visit of the deceased with a lathi indicates that the deceased had picked up a quarrel with the appellant in connection with demand of money and the appellant was provoked by the action of the deceased, who was armed with a lathi. The visit of the deceased with a lathi indicates his ill intention, otherwise there was no reason for going to the house of his brother i.e., the appellant with lathi. The said facts and circumstances indicate that, the deceased was the aggressor. Had not he visited the house of the appellant in that way, probably, the occurrence would not have taken place. 23. From the above it appears that the, the incident took place between the two brothers in heat of passion up on sudden quarrel. Therefore, the entire facts and circumstances of the case does not inspire confidence to believe that the appellant had inflicted the dao blows with pre meditation without any provocation. The visit of the deceased with a lathi for demanding money suggests that the appellant was provoked by the deceased. 24. Therefore, the entire facts and circumstances of the case does not inspire confidence to believe that the appellant had inflicted the dao blows with pre meditation without any provocation. The visit of the deceased with a lathi for demanding money suggests that the appellant was provoked by the deceased. 24. In view of the above, the offence committed by the appellant appears to be a culpable homicidal not amounting to murder. Therefore, we don't find it safe to hold him guilty u/s. 302 IPC. However, from the evidence of medical officer, who performed the post mortem examination, it appears that the appellant inflicted dao blows on vital parts i.e., on neck, occipital region with a sharp cutting weapon. 25. PW 1 and PW 2 also stated that the appellant had inflicted several dao blows on the deceased. The number and the nature of the injuries inflicted by the appellant indicates and the weapon (dao) used by him lead to hold that he had the intention to cause death and intentionally caused the said injuries, which were likely to cause death. Therefore, in our considered opinion, the offence committed by the appellant will fall u/s. 304-II of the IPC. 26. In view of above, we find that the conviction and sentence, imposed on the appellant by the learned trial Judge u/s. 302 IPC is not maintainable and the same is liable to be modified. Accordingly we modify the conviction u/s. 302 IPC to one u/s. 304-II IPC and sentence the appellant to suffer R.I. for 7 (seven) years. No interference is made in respect of the fine imposed on the appellant. 27. With the above, this appeal is partly allowed. 28. Before we part with the appeal, we acknowledge with the appreciation, the assistance rendered by Mr. U. Choudhury, learned Amicus Curiae and we order that an amount of Rs. 7,000/- (Rupees Seven thousand only) be paid to Sri U. Choudhury, by the State, as his remuneration. Return the LCR.