Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1470 (GAU)

Haren Kakati v. State of Assam

2015-11-27

RUMI KUMARI PHUKAN

body2015
ORDER : 1. I have heard Mr. N. Ahmed, learned counsel appearing on behalf of the appellant and also Mr. D. Das, learned Additional Public Prosecutor, Assam, for the respondent State of Assam. 2. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment dated 22.08.2008 passed by the learned Additional Sessions Judge (F.T.C.) No. 4, Kamrup, Guwahati in Sessions Case No. 396(K)/2007 whereby the accused appellant has been convicted and sentenced under Section 304 Part-II IPC and sentenced to undergo rigorous imprisonment for 3(three) years and to pay a fine of Rs. 1000/-, in default, to pay fine, to undergo rigorous imprisonment for another 3(three) months. 3. Brief facts necessary for disposal of this present case is that on 5.12.1995 at about 9.30 P.M., the deceased Joy Kanta Kalita armed with ‘ballam’ entered into the house of the informant Gopal Deka in a drunken condition and caught hold the wife of the informant with an intention to commit rape. At this, the wife of the informant made a hue and cry and hearing the same, her husband the informant as well as the accused appellant, who was a neighbor, arrived at the place of occurrence. On their arrival, the deceased attacked them and assaulted the accused appellant with the ‘ballam’ and, in the process, the accused appellant also picked up a ‘dao’ lying nearby to resist the attempt of the deceased Joy Kanta Kalita and, in the process, deceased Joy Kanta got injury near the neck and died. Soon thereafter, the informant and his family along with the accused appellant went to inform the matter to the nearby police station and narrated all the facts and also filed an FIR narrating the facts therein at the Garchuk Police Outpost, which was subsequently registered as Fatashil Ambari Police Station Case No. 181/95 under Section 302 I.P.C. (G.R. Case No. 5215/95). The police, accordingly, started investigation on the basis of the FIR and after completion of the investigation submitted charge-sheet against the accused persons under Section 302 I.P.C. 4. The accused entered his appearance before the Court below and the case being triable by the Court of Sessions, was committed to the Court of Sessions, Kamrup after furnishing the accused appellant all the necessary documents. The accused entered his appearance before the Court below and the case being triable by the Court of Sessions, was committed to the Court of Sessions, Kamrup after furnishing the accused appellant all the necessary documents. The charge under Section 302 I.P.C. was framed by the learned Additional Sessions Judge, which was read over and explained to the accused, to which he pleaded not guilty and claimed to be tried. 5. To bring home the charge, the prosecution examined as many as seven(7) witnesses and the defence examined none. Plea of defence was of right of private defence and he also examined himself as a defence witness. The accused appellant was examined under Section 313 Cr. P.C. where he narrated the facts that he has not intentionally caused the death of the said deceased Joy Kanta Kalita and death was accidental and he used the weapon only to defend himself. 6. I have heard the arguments of both the learned counsel for the parties and have also considered the evidence on record. According to the learned Additional Public Prosecutor, though the accused has taken the plea of private defence, but he has exceeded the right to protect his life. Pointing towards the findings of the M.O., it has been urged that the deceased sustained three cut injuries on his person which reveals that there was intention on the part of the accused appellant to cause such serious injury on the neck thereby having intention to cause death of said Joy Kanta Kalita. 7. On the other hand, it has been canvassed by learned counsel for the accused appellant that the accused appellant never intended to cause death of the deceased as the evidence itself surfaced that the accused suddenly appeared at the place of occurrence and the injury was caused without any premeditation or without any sort of mesne rea on his part to cause the death of the deceased person. All that happened during such sudden provocation on the part of the deceased person and the accused who was a bonafide intruder into the incident should not have dealt with such serious punishment. 8. Having regard to the arguments of learned counsel for both the parties, let us appreciate the evidence on record. 9. P.W. 1 Sri Gopal Deka is the informant. 8. Having regard to the arguments of learned counsel for both the parties, let us appreciate the evidence on record. 9. P.W. 1 Sri Gopal Deka is the informant. P.W. 2 Smt. Anupama Deka is the wife of P.W. 1 who were the sole eye witnesses to the occurrence and both of them have given clear evidence that on the day of occurrence at about 8.30 P.M., while P.W. 2 was taking his dinner, deceased Joy Kanta arrived at their house and caught hold P.W. 2 with a bad intention and used abusive language to her and at that point of time P.W. 2 made hue and cry. On hearing the hue and cry, P.W. 1 came out from his meal and the accused appellant, who is the immediate neighbour also arrived in their house. On his arrival, the deceased assaulted P.W. and then accused tried to interfere with the matter and then the accused dealt a blow with a iron rod (sabal) on the person of the accused. Then the accused appellant picked up a dao lying nearby to resist the accused from assaulting him and in the process there was a scuffle between the accused and the deceased and, in the process, the deceased fell down sustaining an injury on his neck and, thereafter, the matter was informed to the nearby police outpost vide Ext. 1, the ejahar and Ext.1(1) is the signature of P.W. 1. 10. The evidence of both P.W. 1 and 2 is very crucial for the purpose of deciding the actual incident and they have never stated that the accused appellant with an intention to kill the deceased had dealt with the cut blow. In the cross-examination, they have more clearly stated that the accused appellant used the dao only to protect himself as he was attacked by the deceased with an iron rod in his hand. The facts depicts that due to sudden provocation on the part of the deceased, the accused appellant used the dao and he arrived at the place of occurrence only to help the informant and his family from the bad intention of the deceased person having no any other mesne rea to cause death of deceased Joy Kanta Kalita. The facts depicts that due to sudden provocation on the part of the deceased, the accused appellant used the dao and he arrived at the place of occurrence only to help the informant and his family from the bad intention of the deceased person having no any other mesne rea to cause death of deceased Joy Kanta Kalita. It is also stated by this witness that deceased itself was a man of bad character and was a dacoit, which aspect has also been supported by other witness i.e. I.O. who has stated that there were many criminal cases pending against the deceased. 11. The evidence of P.W. 3 Sri Hiren Das and P.W. 4 Sri Tankeswar Kalita is confined to the facts that they arrived at the place of occurrence on hearing hue and cry in the house of the informant and that they found the dead body of Joy Kanta Kalita lying in the house of the informant. They saw one cut injury on the neck of the deceased, but they do not know as to how he died. They were signatory to the seizure list and inquest request. 12. P.W. 5 Sri Girish Ch. Bora is the I.O., who has stated about the facts supporting the case of the informant that they were informed by the informant immediately after the occurrence. It has been replied that as per inquest report, there was only one cut injury on the neck and no other injury. P.W. 6 Sri Giridhar Bhuyan is the another I.O. who had simply submitted the charge-sheet vide Ext. 4. But this finding in the inquest report is contradicted by the M.O. P.W. 7 Dr. H.K. Mahanta, on examination of the deceased, found three incised injuries about 10 x 3 x 3 cm., 4 x 2 x 1 cm. and 3 x 1 x 1 cm. on the front and right side of the neck. M.O. has opined that death was caused due to such shock and hemorrhage resulting from the cut injuries by sharp cut weapon which is homicidal in nature. 13. and 3 x 1 x 1 cm. on the front and right side of the neck. M.O. has opined that death was caused due to such shock and hemorrhage resulting from the cut injuries by sharp cut weapon which is homicidal in nature. 13. In this context, it is also found that the accused appellant while examining himself as D.W.1 has narrated the facts that on the day of occurrence, hearing hue and cry from the house of the informant, he went to the house of the informant and then he found the deceased coming out from the house of the informant in a drunken condition and asked him as to why he has come and began to beat him with a piece of bamboo and then he also brought an iron rod (sabol) and tried to attack him with that iron. Then, suddenly he picked up the ‘dao’ lying in the house of the informant and tried to resist the deceased Joy Kanta and, in the tussle, deceased fell down and he do now know how the deceased sustained injury in the process. It has been specifically stated that had he not used the dao, the deceased would have killed him by that iron road. He also sustained some injury on his back due to the assault made by the deceased and which was reported to the police, but the police did not pay any attention to the same. 14. Thus, the defence taken by the accused appellant has been proved by the accused by adducing evidence and his plea is itself supported by the evidence of eye witnesses to the occurrence. In view of the evidence of eye witnesses to the occurrence i.e. P.W. 1 and 2, supported by the findings of the I.O. that the deceased was a man of bad character coupled with the fact that the deceased was an aggressor to the incident playing pivotal role to attach and assault the accused appellant. It can be found that injury to deceased occurred because of sudden fight between the parties on provocation, without any pre-mediation. The plea of private defence, however, is of little consequence in view of the findings of three cut injury on the vital portion of the neck. It can be found that injury to deceased occurred because of sudden fight between the parties on provocation, without any pre-mediation. The plea of private defence, however, is of little consequence in view of the findings of three cut injury on the vital portion of the neck. The evidence so far emerged from the record, however, unerringly point out that the accused appellant being a good neighbor went to the house of the informant only for the purpose of helping and because of the behavior of the deceased person, he had to enter into a sudden tussle with the accused and under compelling circumstances he used ‘dao’ and, during the course of tussle, the injury was caused to the deceased by such sharp weapon which he could not assess. It is a case where the FIR itself reveals that accused appellant never intended to cause death of the deceased, so is the evidence on record also. 15. The learned Trial Court has rightly come to the conclusion that it is a case covered under Section 304 Part-II I.P.C. and the accused has been convicted, accordingly, but while imposing sentence, the Court could have been lenient. The law always stands rigid against a criminal who acted with malafide and brutal while causing serious offence like murder, but law should also have bearing in its inner space towards bonafide act of a person who with all generosity went to help others so as to protect neighbor from evil consequence of a wrong doer. 16. In the instant case, the evidence on record itself reveals that the accused appellant resisted the immediate assault of the deceased who wants to stab him with a heavy iron rod and the accused suddenly used the ‘dao’ to protect himself and, in the process, the deceased Joy Kanta Kalita sustained injury on his neck and died thereafter. 17. In the circumstances, what reveal that the law should not be so rigid to such person who has grudge to protect himself as well as his neighbor from the evil consequence. It is to be noted that the accused is in legal battle since 1995 and has already undergone great agony for such long litigation and any serious punishment will defeat the ends of justice. 18. Accordingly, the sentence is hereby interfered with. It is to be noted that the accused is in legal battle since 1995 and has already undergone great agony for such long litigation and any serious punishment will defeat the ends of justice. 18. Accordingly, the sentence is hereby interfered with. The accused is sentence to the detention period which he has already undergone during the course of trial. However, the sentence of fine will remain the same. 19. The appeal is partly allowed as indicated above. Return the L.C.R.