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2015 DIGILAW 107 (GAU)

Dharmeswar Kachari v. State of Assam

2015-02-03

C.R.SARMA, NISHITENDU CHAUDHURY

body2015
JUDGMENT C.R. Sarma, J. 1. The challenge in this appeal is to the judgment and order, dated 15.06.2011, passed by the learned Sessions Judge, Golaghat, in Sessions Case No. 119 of 2007, 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 rigorous imprisonment for another period of three months. It has also been directed that the period of imprisonment, already undergone by the convicted person i.e. the appellant, shall be treated as set off. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. 2. We have heard Mr. S. Borgohain, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Additional Public Prosecutor, appearing for the State. 3. The prosecution case, may, in brief, be stated as follows:-- "On 31.03.2007, at about 8 P.M., at a place called 'Rowduar Gaon', under Bokakhat Police Station, where the appellant Shri Dharmeswar Kochari alias Bhaiti (hereinafter called the appellant!) and his uncle Sri Ghana Kanta Kochari (hereinafter called 'the deceased No. 1') and his aunt Smti Mira Kochari (hereinafter called' the deceased No. 2') used to live, the appellant caused the death of the said deceased persons by assaulting both of them, with apiece of bamboo, in their courtyard. The village headman (P.W.-1) lodged an F.I.R. (Ext. No. 1) with the Police. Accordingly, Police registered a case under Section 302 IPC and launched investigation into the matter." 4. During the investigation, Police visited the place of occurrence, prepared sketch map of the place of occurrence and inquest report of the dead body, sent the dead body for post-mortem operation, examined the witnesses, apprehended the accused person (i.e. the appellant), seized a bamboo lathi from the accused and forwarded the appellant to the Court for recording his confessional statement The learned Judicial Magistrate (PW-3), Mangaldai, recorded the confessional statement (Ext. No. 6), made by the appellant. 5. At the close of the investigation, Police submitted charge-sheet under Section 302 IPC, against the appellant for committing the offence under Section 302 IPC. 6. The said offence, being exclusively triable by the Court of Sessions, the learned SD JM(S), Golaghat committed the case to the Sessions Court, Golaghat. Accordingly, learned Sessions Judge framed charge under Section 302 IPC. 5. At the close of the investigation, Police submitted charge-sheet under Section 302 IPC, against the appellant for committing the offence under Section 302 IPC. 6. The said offence, being exclusively triable by the Court of Sessions, the learned SD JM(S), Golaghat committed the case to the Sessions Court, Golaghat. Accordingly, learned Sessions Judge framed charge under Section 302 IPC. The charge was read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried. 7. The prosecution, in order to prove its case, examined as many as 9(nine) witnesses as PWs including the learned Judicial Magistrate (PW-3) and the Investigating Officer (PW-9). The appellant was examined 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 learned Sessions Judge, Golaghat convicted and sentenced the appellant, as indicated above. 9. Mr. S. Borgohain, learned counsel for the appellant, referring to the evidence, on-record, has submitted that the prosecution failed to adduce sufficient and substantive evidence against the appellant indicating that the appellant had caused the death of the deceased persons. The learned counsel has also submitted that the confessional statement, alleged to be made by the appellant, is not voluntary and trustworthy and as such the same can't be accepted as the sole basis for conviction. 10. In view of the above, Mr. Borgohain, learned counsel for the appellant has submitted that the prosecution failed to prove the case against the appellant beyond all reasonable doubt and as such, the impugned conviction and sentence are liable to be set aside, resulting acquittal of the appellant. 11. Referring the said argument, Mr. D. Das, learned Additional Public Prosecutor, has submitted that there are sufficient oral and circumstantial evidence in support of the prosecution case and that the evidence, given by the prosecution witnesses, the seizure of the bamboo lathi from the appellant, the confessional statement, made by the appellant and the injury report clearly lead to the conclusion that the appellant had assaulted the deceased persons causing their death. Mr. Das has submitted that me learned Sessions Judge committed no error by convicting and sentencing the appellant and that the impugned conviction and sentence does not warrant any interference. 12. Having heard the learned Counsel for both the parties, we have carefully perused the evidence, on-record. 13. Mr. Das has submitted that me learned Sessions Judge committed no error by convicting and sentencing the appellant and that the impugned conviction and sentence does not warrant any interference. 12. Having heard the learned Counsel for both the parties, we have carefully perused the evidence, on-record. 13. The prosecution case is based on the confessional statement, made by the appellant. There is no direct evidence regarding involvement of the appellant. 14. Sri Nara Kachari, who was the Gaonburha of the village, knew both the parties. He came to know about the incident after its occurrence and lodged the FIR with the Police. He exhibited the FIR as Ext. No. 1. He stated that, hearing 'halla' (hue and cry), he rushed to the place of occurrence and found both the deceased persons lying with injuries on their heads. He also stated that Police after their arrival at the place of occurrence, apprehended the appellant. He further stated that the Police had seized a lathi from the place of occurrence. He exhibited the said lathi as Mat Ext. No. 1. He was also a witness to the inquest made by the Police. He exhibited the inquest report as Ext. 3 and his signature, thereon, as Ext. 3(1). This witness, in his cross-examination, stated that he did not see the occurrence himself. 15. Sri Hemananda Kachari, who was the elder brother of the appellant deposed as PW-4. He stated that the deceased were his uncle and aunt respectively. He further stated that the occurrence took place at about 8 p.m. and that he was not present in his house at the relevant time. He further stated that, after returning home, he found his uncle and aunt lying in the backside of their house. This witness was declared hostile and cross-examined by the prosecution. He denied the suggestion, put to him, that on the date of occurrence, at about 8 p.m., when he and his brother i.e. the appellant were taking their meal, the deceased persons visited his house and abused them in foul language, in connection with payment of money. He also stated that a scuffle had taken place between both the parties and that his deceased aunt had assaulted him with an iron rod, while his deceased uncle had pushed him by his neck. He also stated that a scuffle had taken place between both the parties and that his deceased aunt had assaulted him with an iron rod, while his deceased uncle had pushed him by his neck. From the said suggestion, put by the prosecution, it transpires that a quarrel had taken place between the deceased persons and the appellant and that the deceased persons had, initially, abused and assaulted the appellant with a rod. 16. Sri Dhiren Basumatary, who deposed as P.W.-5 stated that he accompanied the dead body to the Police Station. This witness did not know about the occurrence. 17. Sri Nanda Kachari, who deposed as P.W.-6, also stated that he did not know about the occurrence. According to this witness, Police had seized a piece of bamboo by Ext. No. 2. 18. Sri Robin Kachari, who deposed as PW-7, stated that he met the accused person in the Police Station, after the latter was arrested and that the dead bodies were kept in the Police Station. He was also a witness to the inquest report (Ext. No. 3), prepared by the Police. 19. Smti Hemalata Kachari, mother of the appellant, deposing as PW-8, stated that, on the day of occurrence, at about 8 P.M., when she along with the appellant and her other son Sri Hemananda Kachari (PW-4) were taking meal in their house, the deceased persons visited their house and assaulted the appellant She further stated that the appellant and the deceased persons went out and that she found the deceased persons lying death outside. Her said evidence, despite cross-examination, made on behalf of the defence, remained undemolished. From her said evidence, it is clearly found that both the deceased persons visited the house of the appellant and they assaulted the appellant, who was taking meal. This evidence draws supports from the suggestion put to PW-4 by the prosecution. From the said suggestion, put to PW-4 by the prosecution and the evidence, given by PW-8 there is no difficulty in understanding that me deceased persons visited the house of the appellant and initially they had assaulted the appellant Hence, it can be concluded that the deceased were the aggressor and the occurrence took place due to the attack made by them on the appellant on the fateful evening. Except the said evidence, rendered by PWs-4 & 8, there is no other direct evidence against the appellant All of them appeared in the place of occurrence, after the incident. From the evidence of the said witnesses, it stood established that Police appeared in the place of occurrence, immediately after the incident. 20. Dr. Rupak Bora (PW-2), who performed the post mortem examination of the dead body of the deceased persons found the following injuries in respect of Ghana Kanta Kachari (i.e. the deceased No. 1). "External appearance:-- (1) Laceratd wound over frontal part of scalp, 5 x 1 cm. x bone deep. (2) Lacerated wound over right thumb 2 x 1 x 0.5 cm. (3) Bruise over middle part of chest 4 x 2 cm. Lacerated wound over frontal part of scalp. 5 x 1 cm x bond deep. On section, fracture of skull over frontal lobe with blood clot over temporal lobe. In Thorax:- fracture of sternum of middle part. Pleurae and lungs are congested. Other organs are healthy. All the findings are ante-mortem in nature. The post mortem interval is less than 36 hours. Nature of weapon is heavy blunt weapon." He opined that the cause of death was due to shock and hemorrhage as a result of injuries (head injury) sustained by the deceased. He has exhibited the report as Ext. No. 4. He also performed the autopsy on the dead body of Mira Kachari (i.e. the deceased No. 2) and found the following injuries: " External appearance:-- "(1) Laceratd wound over back of right ear over scalp, 4 x 1 cm. x bone deep. (2) On section, fracture of skull with one in tracerebral blood clot seen. (3) Lacerated wound over right ring finger, 1 x 1 cm." The membrane and brain matter are congested. Other organs were healthy. All the findings are ante mortem in nature. The post mortem interval is less than 36 hours. The type of weapon was heavy and blunt weapon." He opined that the cause of death was shock and hemorrhage as a result of head injury. 21. From the said medical evidence, it appears that the deceased persons sustained fatal injuries on Chest Scalp and the injuries were caused by means of heavy blunt weapon. The post mortem examination was made on 01.04.2007. 21. From the said medical evidence, it appears that the deceased persons sustained fatal injuries on Chest Scalp and the injuries were caused by means of heavy blunt weapon. The post mortem examination was made on 01.04.2007. According to the Medical Officer, the interval from the time of the assault till the time of post mortem examination was less than 36 hours. As per the prosecution version, the occurrence took place on 31.03.2007 at about 8 P.M. The said medical evidence supports the prosecution version regarding time of occurrence, relating to the death of the decease. 22. In the FIR, it was clearly stated that a piece of bamboo post was used by the appellant in causing the said injuries. The I.O., who deposed as PW-9, stated that he had seized a bamboo stick from the accused on the very night of occurrence. He has exhibited the seizure list as Ext. No. 2 and the said bamboo stick as Mat. Ext. No. 1. 23. PW-1, who arrived in the place of occurrence immediately after the incident, supporting the evidence of the 10. (PW-9) stated that the Mat Ext. No. 1 was the lathi, which was seized by Police, vide Ext. No. 2. 24. P.W.-6 also stated that the said lathi was seized by the I.O. vide Ext. No. 2. The above evidence, given by the said witnesses, regarding seizure of the lathi remained undemolished. 25. From the above, it appears that the I.O., in the present case, seized a piece of bamboo lathi from the possession of the accused persons immediately after the incident The said seizure, coupled with the medical evidence, supports the prosecution version regarding assault made by the appellant Fact remains that the I.O. (PW-9), who visited the place of occurrence, immediately after the incident found the dead bodies of the deceased, lying in injured condition, in their house. The other non official witnesses also, including PW-1 and PW-4 stated that they found the dead bodies of the deceased lying in their courtyard, in injured condition. The said circumstances and the seizure of the weapon of assault (piece of bamboo), seized from the possession of the accused, after the occurrence, supports the prosecution story that the appellant had assaulted the deceased persons with the said weapon, causing their death. 26. The said circumstances and the seizure of the weapon of assault (piece of bamboo), seized from the possession of the accused, after the occurrence, supports the prosecution story that the appellant had assaulted the deceased persons with the said weapon, causing their death. 26. The appellant after his arrest, was produced before the learned Chief Judicial Magistrate for recording his confessional statement and the learned Chief Judicial Magistrate forwarded the accused to the learned Judicial Magistrate (PW-3) for recording his statement. 27. Mr. K.S. Pathak, Judicial Magistrate 1st Class (PW-3), who recorded the confessional statement of the appellant stated that after receiving the accused, he explained to him the consequences of making the confessional statement and found him to be willing to make confession voluntarily and accordingly recorded the confessional statement 28. We have carefully perused the confessional statement recorded by PW-3. The learned Magistrate (PW-3) has exhibited the same as Ext. No. 6 and his signature thereon as Ext. 6(1) and 6(2). The learned Judicial Magistrate has also exhibited the signatures of the accused person on the Ext. No. 6 as Ext. Nos. 6(3), 6(4) and 6(5). 29. Though PW-3 was cross-examined on behalf of the defence, nothing could be elicited to disbelieve the evidence of PW-3 regarding voluntariness of the maker of the said statement. From the report it is found that before recording the confession, the accused (i.e. the appellant) was remanded to judicial custody for one night and his confession was recorded, on the next day, after keeping him in the chamber of PW-3 for reflection. We find that sufficient time was given for reflection and all necessary precautions were taken, before recording the confession. 30. From the above, it appears that the confessional statement, made by the appellant, was true and voluntary in nature. Though the accused at the time of his examination under Section 313 Cr.P.C. retracted the said confession, such retraction at the belated stage cant negate the evidentiary value of the said confession. 31. The said confessional statement, coupled with the above discussed circumstantial evidence as well as the medical evidence, as indicated above, conclusively lead to hold that none other than the appellant had caused the death of the deceased persons by assaulting them with the said seized weapon. Hence, in our considered opinion, the prosecution has been able to establish that the appellant had caused death of the deceased persons. Hence, in our considered opinion, the prosecution has been able to establish that the appellant had caused death of the deceased persons. 32. As revealed from the above discussed evidence, it has been found that the deceased had visited the appellant, when he was taking meal with his brother and they had picked up a quarrel with the appellant regarding repayment of money. As discussed above, it has been proved that the appellants had abused the appellant and his brother in foul language and that they had attacked the appellant and his brother. This act of the deceased, provoked the appellant as a result of which he picked up the piece of bamboo and inflicted the blows on the deceased. The evidence, given by PW-8 and the suggestions put to P.W.-4 by the prosecution, sufficiently indicate that the said acts of the deceased had provoked the appellant. Had the deceased not visited the house of the appellant and provoked him in said manner, probably, he would not have assaulted the deceased, resulting their death. 33. In view of the above facts and circumstances, we have no hesitation in holding that the appellants had no pre-meditation to assault or cause the death of the deceased. In our considered opinion, the offence committed by the appellant will not tall under u/s. 302 I.P.C. Therefore, we set aside the impugned conviction and the sentence of imprisonment. 34. The nature of the injuries caused and the type of weapon used, clearly indicates that the appellant had the knowledge that the injuries inflicted was likely to cause death. 35. From entire facts and circumstances of the case and the evidence, on-record, we find that the appellant committed the offence under Section 304 Part (II) IPC. Hence, the conviction under Section 302 IPC is modified to one under Section 304 Part (II) IPC and the appellant is sentence to suffer rigorous imprisonment for 7 (seven) years under Section 304 Part (II) IPC. We make no interference in respect of the sentence regarding fine. The appellant shall be entitled to the benefit of set off u/s. 428Cr.P.C. 36. With the above modification, the appeal is partly allowed. Return the LCR.