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2015 DIGILAW 415 (TRI)

Laxman Debnath v. State of Tripura

2015-06-24

S.TALAPATRA, U.B.SAHA

body2015
JUDGMENT S. TALAPATRA, J. 1. This is an appeal by the convict, hereinafter referred to as the appellant, against the judgment dated 13.09.2011 delivered in S.T. 55(NT/D) of 2010 by the Assistant Sessions Judge, North Tripura, Dharmanagar. By the said judgment and order dated 13.09.2011 the appellant has been convicted under Section 307 of the IPC and sentence to suffer R.I for 10 years with fine of Rs. 9,000/- with default imprisonment. 2. The genesis of the prosecution case is rooted in the written ejahar filed by the Smt. Sushila Debnath (PW-8) on 02.05.2009 disclosing that when her husband namely, Krishna Debnath (PW-7), was approaching towards Pechartahal market place with a bag containing fish by riding a bicycle. Laxman Debnath, the appellant herein, in a premediated manner attempted to kill her husband to settle the score in respect of previous animosity. He had dealt hacking blow in the backside of his neck of the victim with a sharp dao and fled away. She received the information from Adhir Debnath (PW-4) and rushed, with her relatives, to the place of occurrence. They transported her injured husband to Pachartahal Hospital. No sooner had they reach the hospital, the injured was referred to RGM Hospital at Kailashahar. 3. Based on the said written ejahar (Exbt-2), Pechartahal P. S. Case No.18 of 2009 under Section 307/326 of the IPC was registered on 02.05.2009 and taken up for investigation. On completion of the investigation the final police report had been filed and the case was committed to the court of the Additional Sessions Judge, North Tripura, Dharmanagar for trial. In the course of time, the case was transferred to the court of the Assistant Sessions Judge, North Tripura. On completion of the investigation the final police report had been filed and the case was committed to the court of the Additional Sessions Judge, North Tripura, Dharmanagar for trial. In the course of time, the case was transferred to the court of the Assistant Sessions Judge, North Tripura. The Assistant Sessions Judge, hereinafter referred to as the Trial Judge or the trial court framed charge against the appellant under Section 307 of the IPC in the following terms: “That you on or about the 2nd day of May, 2009 at about 3 pm., while Sri Krishna Debnath of Ambercharra P.S. Pechartahal was going to Pechartahal market from home on his bycycle you stood on his way and assaulted him with a dao (a sharp cutting weapon) and in the course of assault you gave a blow with the sharp edge of the dao on his neck intending to kill him and caused grievous hurt to him and by that act you would have bear guilty of murder if Sri Krishna Debnath died due to the assault and you thereby committed an offence punishable under Section 307 of the Indian Penal Code and within the cognizance of this court”. The appellant reiterates his innocence and claimed to face the trial. 4. To substantiate the charge the prosecution adduced as many as 14 witnesses including the injured (PW-7) and the Medical Officer, Dr. Gitesh Bhattacharjee (PW-12), Dr. Subhankar Nath (PW-11), the Sr. Scientific Officer in the State FSL and the Investigating Officer, Sri. Bapi Debbarma (PW-14). 5. On recording the prosecution's evidence which also included 11 documentary evidence (Exbts-1 to 9), the Trial Judge examined the appellant under Section 313 of the Cr.P.C., for having his response towards the incriminating materials surfaced in the evidence. The appellant denied those but did not explain anything nor did he claim to adduce any witness. 6. Mr. R. Dutta, learned counsel appearing for the appellant has precisely contended that even if the entire prosecution evidence is relied, there would be no evidence beyond reasonable doubt to demonstrate that the appellant had intention to kill the injured or had he the knowledge that the act may constitute murder. He has also relied on the statement of the injured (PW-7) to show that there was no premeditation orchestration or preparation as stated in the written ejahar. He has also relied on the statement of the injured (PW-7) to show that there was no premeditation orchestration or preparation as stated in the written ejahar. He has submitted that PW-7 had engaged in altercation with the appellant and due to sudden anger, he dealt the blow and as such there was no intention to kill or knowledge that blow might cause the murder. 7. To nourish such submission, Mr. Dutta, learned counsel appearing for the appellant has relied on a decision of the Apex Court in Ramesh v. State of U.P. reported in (1992) 1 SCC 318 , where it has been observed that : “We do not propose to decide it as a matter of law. But we agree with the learned counsel for the appellant that in peculiar circumstances of the case it being a case of single injury in the back of neck the conviction can be altered to be under Section 324, Indian Penal Code”. 8. Mr. Dutta, learned counsel appearing for the appellant has emphasized that the victim (PW-7) received one single injury on the back of his neck. He has also referred a decision of the Gauhati High Court in Bhaba Ranjan Sarkar v. State of Tripura, reported in (2012) 4 GLR 112, where that court had decided that : “Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307, of the IPC”. 9. From the other side, Mr. Debnath, learned Additional P.P., appearing for the State has submitted that there was previous enimity between the appellant and the injured (PW-7) over the landed property which ensued after death of their father and as a result of that enimity the appellant dealt a hacking blow by a dao. 10. Mr. Debnath, learned Addl. P.P., has further highlighted that the appellant did not give any explanation what he was doing with that dao in the road side and as such the circumstances are quite eloquent to indicate beyond any reasonable doubt that the appellant had the preparedness to cause death of the injured (PW-7) and hence, no inference from this Court is called for. 11. 11. For appreciation of the respective submission of the learned counsel for the parties, this Court, in the beginning, would observe that the learned counsel for the appellant did not challenge that finding that the appellant dealt with a hacking blow on the back side of the neck of the injured (PW7) but he has raised the singular objection that whether he had any intention to kill or knowledge that blow might cause death of the injured. 12. According to Mr. Dutta, learned counsel appearing for the appellant, it would appear from the evidence that the appellant had no intention to kill his brother, the victim (PW-7). Therefore, there is no necessity of appreciating the statements of all the witnesses in detail. The solitary question which is left for consideration of this Court is whether the act, irrespective of its result was done with knowledge or intention to kill. 13. For scrutiny of the records, it appears that PW-1, Shri Bishnu Debnath, younger brother of the victim and the appellant is a hearsay witness, but he did shift the victim to the Pachertahal Hospital. 14. PW-2, Smt. Maharani Debnath, the mother of the victim, is as well a hearsay witness as she also did not see the appellant to deal the hacking blow on the back side of the victim's neck. She has stated that the appellant was living separately but she denied to have heard her injured son that his brother, the appellant, has done it to him. 15. PW-3, Subhashini Debnath who appears immediately after the accident, has stated nothing about the incident. PW-4, Adhir Chandra Debnath did not disclose anything material. PW-5, Khagendra Debnath has stated that hearing cry he had rushed and saw his aunt Smt. Subhashini Debnath (PW-3) was holding the injured in her arms. Thereafter, the injured was taken to the hospital. He has stated that one dao was recovered from the jungle in their presence. 16. PW-6, Jatindra Debnath, is again hearsay witness but he rushed to the place of occurrence but did not see the act. He saw the victim in the injured condition at the place of occurrence. PW-7, Krishna Debnath, the victim is the person, who saw the transaction leading to the grievous hurt that he had received on the back side of his neck from the hacking blow dealt by the appellant. He saw the victim in the injured condition at the place of occurrence. PW-7, Krishna Debnath, the victim is the person, who saw the transaction leading to the grievous hurt that he had received on the back side of his neck from the hacking blow dealt by the appellant. For purpose of appreciation the relevant part of the statement is reproduced hereunder: “The occurrence took place on 02.05.2009 at about 2.30pm. It was Saturday. I caught fish from a pond. At that time my brother Bishnu was also with me. I had taken my meal and took rest for a while. Then I left for Pechartahal market on my bicycle. I had about 6/7 Kg. fish in two bags with me. I was carrying those bags on the liver of my bicycle. My elder brother Laxman Debnath was 50 cubits ahead of me. He was on his foot. On the way I was to cross a high land and therefore I got down from bicycle and I was ascending the high land on foot. At the end of the high land when I was about to ride my bicycle again I met my brother Laxman Debnath. He asked me as to why I did not give him the share of the fish and in the twinkling of eye he gave a dao blow on my neck. The witness has shown to the court the heeled mark of injury which is still visible on his neck. As soon as I received the blow I fell on earth. My accused brother was disappeared. I got up and started crying for help. I felt that I did not have any strength. My voice become feeble but gradually I regain the strength to cry loudly. Hearing my cry my aunt Subhashini Debnath appeared along with her husband. Her husband informed my house inmates who came immediately and shifted me to hospital. I told them that my brother Laxman Debnath gave the dao blow on my neck. From Pechartgahal hospital I was referred to Kailashahar hospital where I was detained from 02.05.2009 to 17.05.2009. Six months prior to the occurrence my accused brother separated from his mess. Then our relationship got strained”. 17. PW-8, Sushila Debnath had lodged written ejahar (Exbt-2) in the police station. From Pechartgahal hospital I was referred to Kailashahar hospital where I was detained from 02.05.2009 to 17.05.2009. Six months prior to the occurrence my accused brother separated from his mess. Then our relationship got strained”. 17. PW-8, Sushila Debnath had lodged written ejahar (Exbt-2) in the police station. She has only narrated that she was informed of the occurrence by Subhasini Debnath (PW-3) and her husband, Adhir Chandra Debnath. 18. PW-9, Uttam Biswas, was a constable of police posted in the Pachertahal Police Station. He accompanied the investigating officer in the jungle in search of the weapon of offence and discovered a dao in the jungle. He identified that dao as Exbt-MO-1. He has stated in the cross examination that “the place where the weapon was discovered was 10/11 kms. away from the P.S. He was taken to the jungle from home because after arrest he told us that he left the dao in the jungle”. He has also stated that the dao was discovered at the instance of the appellant when he was arrested on 03.05.2009. 19. PW-10, Mohan Lal Roy is an independent witness who was present at the time of seizure of Exbt. MO-1. He has identified his signature on the seizure list (Exbt-4). But in the cross examination, he has stated that what has been written in the seizure list was not read over to him. 20. PW-11, Dr. Subhankar Nath, examined the MO-1 series chemically and has stated that there was no blood stain on the dao. He identified his report, Exbt-5 series. 21. PW-12, Dr. Gitesh Bhattacharjee who is the medical officer in the RGM Hospital, Koilashahar has stated that on examination the victim (PW-7) found one sharp cut injury over the nape of the neck placed transversely. The injury was grievous in nature and it was caused by sharp weapon. Injury was fresh and had occurred within 12 hours. He submitted his report on 16.05.2009 (Exbt-6), and identified that report. In the cross examination, he has stated that the patient could have died due to that injury. He has further asserted that the patient was admitted on 02.05.2009 and discharged from the hospital on 15.05.2009 meaning thereby the patient was in the hospital for 14 days. 22. PW-13, Suro Kumar Debbarma, S.I. of police, Pachertahal P.S. to whom investigation was entrusted for some time, only collected the FSL report (Exbt. He has further asserted that the patient was admitted on 02.05.2009 and discharged from the hospital on 15.05.2009 meaning thereby the patient was in the hospital for 14 days. 22. PW-13, Suro Kumar Debbarma, S.I. of police, Pachertahal P.S. to whom investigation was entrusted for some time, only collected the FSL report (Exbt. 5 series) as the previous investigating officer namely, Bapi Debbarma completed the investigation substantially, he filed charge sheet against the appellant under Section 307/341/326 of the IPC. 23. PW-14, Bapi Debbarma, has narrated how he conducted the investigation by recording the statements, preparing the hand sketch map, collecting the injury report and sending the recovered weapon of seizure for examination by the Forensic Science Laboratory (FSL in short). He even collected the blood samples from the injured for matching the same with the bloodstain, if available in the seized weapon. He has admitted in the cross examination that though in the ejahar it has been stated that Adhir Chandra Debnath and his wife were eye witnesses but it did not turn to be true. He has further asserted that from the investigation it reveal that the appellant had land dispute with the victim, his younger brother. He has also stated where from the weapon of assault was recovered. But he admitted he did not seize the wearing apparel of the victim. 24. From appreciation of the evidence, what appears is that the injury received by the victim (PW-7) cannot be considered as the grievous hurt in terms of Section 320 of the IPC. Now it is to be seen whether from the statement of the witnesses such as PW-s7, 8 and 14, intention to kill or knowledge has been established by the prosecution beyond the reasonable doubt. 25. In this regard, according to this Court, the testimony of PW-7 is of paramount importance. He has stated in his statement, as reproduced, that when he took his journey by riding bicycle for the Pachertahal market with about 6/7 kgs of fish in two bags, his elder brother, Laxman Debnath was 50 cubits ahead of me. He was on his foot. On the way he was to ride an upper gradient in the road and for that purpose for pushing the bicycle up he got down from the bicycle. He was on his foot. On the way he was to ride an upper gradient in the road and for that purpose for pushing the bicycle up he got down from the bicycle. When he was ascending the upper gradient on foot, at the end of the upper gradient he was about to ride his bicycle again, he met his brother Laxman Debnath. He asked him (PW-7) why he did not give him the share of the fish and within 'twinkling of eyes' he gave a dao blow on his neck. He fell on earth, but his brother, the appellant herein, disappeared from the place of occurrence. He got up and started crying. Hearing his cry his aunt, Subhashini Debnath, appeared along with her husband. They gave the information to the house inmates and immediately they came in that place and shifted him to the hospital. He has stated that his relationship with the appellant was strained. 26. In the cross examination he has further stated that he caught fish from the water of his share however, he has admitted that there was no formal partition. It is clear from the statement that the appellant had also approached towards the market and he was on foot ahead of the bicycle of the victim. When the victim was ascending the upper gradient of the road, the appellant asked the victim why he had not given his share of fish and thereafter, within a twinkling of the eyes he gave a dao blow on his neck. 27. It clearly transpire that the appellant was not waiting in a particular place for his younger brother to kill him, rather it was a chance meeting in the way and seeing him with the fishi-bags he asked about his share, and suddenly he dealt with a dao blow in the vital part of his body. Whether from the said act in the circumstances as detailed by PW-7 it can be held that the appellant had the intention to kill his younger brother (PW-7). 28. The Apex Court in Om Prakash v. State of Punjab, reported in AIR 1961 SC 1782 has held that “ A person commits an offence under Section 307 when he has an intention to commit murder and in pursuance of that intention, does an act towards its commission irrespective of the fact whether that act is the penultimate act or not. The intention to commit the offence of murder means that the person concerned has the intention to do certain act with the necessary intention or knowledge mentioned in Section 300, the intention to commit an offence is different from the intention or knowledge requisite for constituting the act as that offence. The expression 'whoever intends to do a certain act with the intent or knowledge necessary for the commission of that offence. “ The same is meant by the expression” whoever does an act with such intention or knowledge and under such circumstances that if he, by that act, caused death, he would be guilty of murder in Section 307. This simply means that the act must be done with the intent or knowledge requisite for the commission of the offence of murder. The expression “by that act” does not mean that the immediate effect of the act committed must be death. Such a result must be the result of that act whether immediately or after a lapse of time. The word 'act' again, does not mean only any particular, specffic, instantaneous act of a person, but denotes, according to Section 33, as well a series of acts meaning thereby the preparation, intention and the overt act. ” [Emphasis supplied] 29. In Sarju Prasad v. State of Bihar, reported in AIR 1965 SC 843 it has been further held as under: “....Having said all this we must point out that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300, Indian Penal Code. For, unless the prosecution discharges that burden the offence under Section 307, IPC cannot possibly be brought home to the appellant. The state of the appellant's mind has to be deduced from the surrounding circumstances and as Mr. Kohli rightly says that existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. Kohli rightly says that existence of a motive to cause the death of Shankar Prasad would have been a relevant circumstance. Here, the prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim of his attack. On the other hand he points out that as the appellant had no enmity with Shankar Prasad that neither of them even knew each other and that as the appellant inflicted the injury on Shankar Prasad only to make him release the wrist of Sushil while Sushil was in the act of stabbing Madan Mohan he cannot be said to have had the motive to kill Shankar Prasad and, therefore, no intention to cause murder or to cause any injury which may result in death could be inferred. Now, it is the prosecution case that about a week before the incident Sushil, for certain reasons, had given a threat to Madan Mohan to the effect that he would be taught a lesson and according to the prosecution Sushil and the appellant Sarju swere tying in wait for Madan Mohan in the chowk on the day in question with chhuras with the intention of murdering him. The prosecution wants us to infer that these two persons also had the intention of murdering anyone who went to the rescue of Madan Mohan. It seems to us that from the facts established it cannot be said that the appellant had the intention of causing the death of Shankar Prasad or of anyone who went to Madan Mohan's rescue. If such were his intention then another significant fact would have possibly, though not necessarily, deterred him and that is that Madan Mohan and Shankar Prasad were not the only persons there at that time but were accompanied by some other persons. Moreover, the incident occurred in broad day light in a chowk which must be a well frequented area. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment”. [Emphasis supplied] 30. In Sarju Prasad v. State of Bihar, prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim. It is not easy to assume that in such circumstances the appellant could have intended to commit a crime for which the law has provided capital punishment”. [Emphasis supplied] 30. In Sarju Prasad v. State of Bihar, prosecution has led no evidence from which it could be inferred that the appellant had a motive to kill the victim. But in the case in hand the prosecution has led there was some dispute over the partition of the land and the brothers were living separately. Whether is that enough to discharge the burden? 31. In Hari Singh v. Sukhbir Singh and Ors, reported in (1988) 4 SCC 551 , the Apex Court has observed as under: “Under Section 307, of the IPC what the court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that Section. The intention or knowledge of the accused must be such as is necessary to constitute murder. Without this ingredient being established, there can be no offence of “attempt to murder”. Under Section 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequence that ensue. The nature of the weapon used, manner in which it is used, motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration to determine the intention. In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it. They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but were not provoked or tempted to use the cutting edge of the weapon. It is very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed, might have been a sudden flare up. Where the fight is a accidental owing to a sudden quarrel, the conviction under Section 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under Section 307, IPC”. [Emphasis supplied] 32. They had no motive either. The fight as the High Court has observed, might have been a sudden flare up. Where the fight is a accidental owing to a sudden quarrel, the conviction under Section 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under Section 307, IPC”. [Emphasis supplied] 32. Similarly, in Sagayam v. State of Karnatak, reported in (2000) 4 SCC 454 , it has been held as under: “... the Apex Court has held that to justify conviction under Section 307, IPC, it is not essential that bodily injury capable of causing death should have been inflicted. An attempt in order to be criminal need not be the penultimate act foreboding death. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof, such act being proximate to the crime intended and if the attempt has gone so far that it would have been complete but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it, second, the preparation to commit it, third, an attempt to commit it. If at the third stage, the attempt fails, the crime is not complete but the law punishes for attempting the same. An attempt to commit crime must be distinguished from an intent to commit it or preparation of its commission”. [Emphasis supplied] 33. In the State of M.P. v. Saleem @ Chamaru and Anr., reported in (2005) 5SCC 554, the Apex Court elaborated the requirement to justify conviction under Section 307, IPC and held as under: “To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to case the death of the person assaulted”. 34. If the testimony of PW-7 is keenly read, this Court does not find any statement that even PW-7 had any perception that his brother, the appellant herein, had intention to kill him. He has stated that in a twinkling of eye immediately after asking him the question he dealt him a blow with a dao. Therefore, it is clear from the evidence, even the victim had no perception that his brother, the appellant herein, had any intention to kill. From the circumstances this Court does not get any material either singularly or collectively to infer that the appellant had intention to kill the victim (PW-7). Inasmuch as, no evidence has been led to show in particular, the intent of the appellant behind the overt act 35. From the nature of injury this Court cannot always come to the conclusion that there had been intention to kill someone, even if the injury might be of such nature that could have caused death of the person. The knowledge of the act leading to the murder is different from the final consequence of any injury. The knowledge of the act that might cause murder is definitely indicative of the intention to kill such act would definitely come under the act as referred under Section 307 of the IPC. 36. Having appreciated thus, this Court is of the considered opinion that prosecution has failed to prove the element of intention to kill and as such the conviction under Section 307 of the IPC as returned against the appellant is liable to be interfered with and accordingly it is interfered with. 37. Having regard to the decisions rendered by the Apex Court in Ramesh v. State of U.P., this Court is inclined to convert the charge under Section 324 of the IPC without framing any formal charge and the petitioner is convicted under Section 324 of the IPC for causing voluntarily hurt by dangerous weapon. 37. Having regard to the decisions rendered by the Apex Court in Ramesh v. State of U.P., this Court is inclined to convert the charge under Section 324 of the IPC without framing any formal charge and the petitioner is convicted under Section 324 of the IPC for causing voluntarily hurt by dangerous weapon. As consequence, he is sentenced to suffer R.I. for 1 year with a fine of Rs. 20,000/- in default of payment of fine he shall suffer R.I. for 6 months. If the fine money is realized, the same shall be paid as compensation to the victim (PW-7). As stated that the appellant is on bail, he shall surrender in the trial court within 2(two) weeks from today for suffering the sentence. 38. Accordingly, the appeal is partly allowed. Send down the LCRs forthwith.