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2015 DIGILAW 1327 (GAU)

K. Hrangliana v. State of Mizoram

2015-10-12

B.K.SHARMA, M.R.PATHAK

body2015
JUDGMENT : B.K. Sharma, J. This appeal is directed against the judgement and order dated 10/06/2010 passed by the Learned Addl. District & Sessions Judge, Lunglei in Crl. Tr. No. 152/2009 convicting the accused appellant under Section 302 IPC. The prosecution story in brief is that on 11/08/2005, at about 7.00 p.m., the accused appellant had an argument with the deceased and resultantly had beaten her up using fire wood and the deceased succumbed to the injuries she had sustained. Narrating the said fact, an FIR was ledged on 12/08/2005 at about 7.30 a.m. which was registered as Lunglei P.S. Case No. 174/2005 under Section 302 IPC and the police started investigation and on completion of the same, charge sheet was submitted under Section 302 IPC. Charge under the said section having been framed, the accused appellant was explained of the same and he pleaded not guilty of the charge. Be it stated here that the accused appellant was arrested on 12/08/2015 and since then is in jail custody and by now has completed more than 10 (ten) years. 2. During trial, the prosecution examined 14 witnesses including the I.O. and the Doctor who had conducted the post-mortem examination. Defence also examined two witnesses and the statement of the accused-appellant under Section 313 Cr.P.C. was also recorded. The learned trial Court by its impugned judgement and order dated 10/06/2010 having convicted him under section 302 IPC sentencing him to undergo life imprisonment with a fine of Rs. 3,000/- and in default further R.I. for 30 days, the accused appellant has preferred this appeal. 3. From the materials on record, it appears that the petitioner had earlier approached this Court by filing another appeal being Criminal Appeal No. 1/2009 and the said appeal was against the judgement of conviction dated 01/07/2008, by which he was convicted under Section 302 IPC. The appeal was disposed of by judgement and order dated 29/10/2009 remanding the matter back to the learned Trial Court for fresh recording of the statement of the accused appellant under Section 313 Cr.P.C. After doing that the learned Trial Court again having convicted the accused appellant vide the impugned judgement dated 10/06/2010, he has preferred this appeal. 4. We have heard Mr. Lalramzuava, learned senior counsel assisted by Mr. T.J. Lalnuntluanga, learned counsel for the appellant. We have also heard Ms. Linda L, learned APP, Mizoram. 4. We have heard Mr. Lalramzuava, learned senior counsel assisted by Mr. T.J. Lalnuntluanga, learned counsel for the appellant. We have also heard Ms. Linda L, learned APP, Mizoram. We have also considered the entire materials on record. Learned counsel for the appellant submits that considering the evidence on record, it is not a case for conviction under Section 302 IPC and at best it would be a case falling under section 304 Part-I or Part-II IPC. In this connection, he has placed reliance on the decision of the Apex Court reported in 2013 CRI. L. J. 962 (Budhi Singh v. State of H.P.). 5. Countering the above argument, Ms. Linda L, learned APP, Mizoram submits that there being pre-meditation on the part of the accused appellant to kill the deceased, it is not a case falling under Section 304 Part-I or Part-II of IPC. Referring to the evidence on record, she submits that all the ingredients towards establishing an offence punishable under Section 302 IPC being present, no interference is called for in respect of the impugned judgement of conviction. 6. In the instant case, it is the accused appellant who himself lodged the FIR stating about the incident. In the FIR, narrating the incident, he stated about beating the deceased on her head by using fire wood. As per the evidence on record, after beating her he had gone out but soon thereafter came back home and fetch water to her. Thereafter he again went out and unfortunately the deceased succumbed to the injuries. In his statement under Section 313 Cr.P.C. answering the question as to why he had beaten her, he replied that the deceased (who incidentally was his brother's wife), used to get drunk and on the night of occurrence also she took liquor along-with another person. He also stated that she had beaten him up and tried to hit him again and again and due to anger he had also beaten her up. He further stated that he had seen her sleeping with the other person. 7. Referring to the aforesaid fact, the learned counsel for the appellant submits that when there is no evidence that the accused appellant had killed the deceased with pre-determined mind, it will be unsafe to convict the accused appellant under Section 302 IPC. He further stated that he had seen her sleeping with the other person. 7. Referring to the aforesaid fact, the learned counsel for the appellant submits that when there is no evidence that the accused appellant had killed the deceased with pre-determined mind, it will be unsafe to convict the accused appellant under Section 302 IPC. The two witnesses examined by the defence stated in their deposition about the fact of the deceased being a relation of the accused appellant. They also stated as to how the deceased used to get drunk and pick up quarrel with her neighbours. They also stated that her character was not good. The other witnesses did not specifically implicate the accused appellant. However, PW-9 in his deposition stated that sometime the deceased and the accused had argument about their properties. As discussed in the impugned judgement, this aspect of the matter was not corroborated by any one of the prosecution witnesses. In the confessional statement on which the learned trial Court placed reliance, the accused appellant stated about beating the deceased with fire wood and as to how she became unconscious. 8. As recorded in the previous judgement, which was interfered with vide judgement dated 29.10.2009 in Criminal Appeal No. 1/2009, there is specific reference to the evidence and the learned trial Court held that there was no direct evidence. However, the conviction of the accused appellant was based on the confessional statement. The said judgement was interfered with and the matter was remanded back for recording the statement of the accused appellant under Section 313 Cr.P.C. Upon such remand, the accused appellant was again examined under Section 313 Cr.P.C. As to what he had stated during the said examination has been noted above. 9. Section 300 of the Indian Penal Code defining murder, provides certain exceptions including that of grave and sudden provocation etc. In the instant case, admittedly, the deceased was in a drunken condition and was also in association with another man. It was in the said circumstance, the accused appellant confronted her and when the man with whom she was in company went out, gave her wooden blows and she became unconscious. Coming back home the accused appellant fetched her water on request but unfortunately she succumbed to her injuries. It was in the said circumstance, the accused appellant confronted her and when the man with whom she was in company went out, gave her wooden blows and she became unconscious. Coming back home the accused appellant fetched her water on request but unfortunately she succumbed to her injuries. It was the accused appellant who had lodged the FIR and thereafter made the confessional statement narrating the facts as discussed above. In his statement recorded under Section 313 Cr.P.C. also he stated about the circumstances leading to the incident. 10. In Budhi Singh (Supra), the Apex Court confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder" held thus :- "19. As we have discussed above, premeditation and intention to kill are two vital circumstances amongst others which are to be considered by the Court before hilding the accused guilty of an offence under Section 302 or 304 IPC. At the cost of repetition, we may notice that from the prosecution evidence, it is not established that the accused had the intention to kill the deceased or it was a premeditated crime. The learned counsel appearing for the State has contended that the very fact that the accused had come out with a tobru completely establishes the intention to kill and , thus, the offence would fall under Section 302 IPC. It cannot be disputed that the accused came out with a tobru but, at the same time, it is also clear that this is the most easily available weapon in that part of the hills and is used regularly by the communities. Beyond this factor, there is no evidence of animosity, premeditation or intention to kill. The accused did give a blow by tobru on the head of the deceased which proved fatal. This was result of the grave and sudden provocation where father of both the deceased and the accused was being abused, assaulted and ill-treated by the deceased, who was in a drunken state. 20. Thus, in the facts of the present case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of section 300 IPC as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Having held the accused guilty of an offence under Section 304 Part I IPC, we award the sentence of 10 years rigorous imprisonment and to a fine of Rs. 5,000/- in default thereto to undergo further imprisonment of six months." 11. In the instant case also, the ingredients for constituting an offence punishable under Section 302 IPC i.e. pre-meditation and intention to kill is missing so as to convict the accused appellant under the said Section. In our considered opinion, ends of justice would be met if the conviction of the accused appellant is converted to Section 304 Part-I IPC and such conviction would necessarily require re-determination of the sentence which the accused appellant would deserve in the given facts and circumstances. As noted above, the accused appellant is under judicial custody since 12/08/2005 and by now has completed more than 10(ten) years. The maximum penalty prescribed under Section 304 Part-I is either life imprisonment or a term of imprisonment for 10 years. 12. In the given facts and circumstances, we are of the considered opinion that ends of justice would be met if the sentence is restricted to the imprisonment already undergone while retaining the fine imposed by the impugned judgement of conviction. 13. The criminal appeal is partly allowed with above modification of sentence. Since the accused appellant has already undergone the modified sentence in terms of this order, he shall be released forthwith, if not wanted in connection with any other case. 14. Registry shall send down the LCR to the learned court below along with a copy of this order.