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2015 DIGILAW 861 (GAU)

Lal Bahadur Thapa v. State of Assam

2015-07-17

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2015
JUDGMENT : C.R. Sarma, J. 1. This appeal, from jail, is directed against the judgment and order, dated 25.06.2012, passed by the learned Additional Sessions Judge (FTC), Nagaon, in Sessions Case No. 179(N)/2010, whereby the learned Sessions Judge convicted the appellant under Section302 of the Indian Penal Code (for short, IPC) and sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/-, in default, suffer rigorous imprisonment for another period of 6 (six) months. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal from jail. As there was none to represent the appellant, Mr. K. Goswami, learned Counsel, has been appointed as the Amicus Curiae to represent the appellant. 2. We have heard Mr. K. Goswami, learned Amicus Curiae and Mr. D. Das, learned Additional Public Prosecutor, Assam. 3. The prosecution case, in brief, may, be stated as follows:- On 03.04.2010, at about 11 A.M., the appellant, in the absence of other members of his family, in the house, assaulted his minor son (aged about 8 years), namely, Sri Punam Thapa (hereinafter called the deceased), with an axe inside his house and thus, caused his death. 4. An FIR was lodged by one Mr. Shraban Thapa (P.W. 1), who was the brother of the accused. On receipt of the said FIR, Police registered a case under Section 302 IPC and launched investigation into the matter. During the investigation, Police visited the place of occurrence, took the appellant, who was detained by the villagers, in to Police custody, seized one axe, one hammer, which were stained with blood, from the place of occurrence, conducted inquest in respect of the dead body and forwarded the same for post mortem examination. 5. At the close of the investigation, Police submitted charge-sheet, against the accused person, under Section 302 IPC. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate 2nd Class, Nagaon, committed the case to the Court of Sessions. Accordingly, the learned Additional Sessions Judge (FTC), Nagaon, considering the materials, on-record, framed charge under Section 302 IPC. The charge was explained and read over to the accused to which he pleaded not guilty. He claimed to be tried. 6. Accordingly, the learned Additional Sessions Judge (FTC), Nagaon, considering the materials, on-record, framed charge under Section 302 IPC. The charge was explained and read over to the accused to which he pleaded not guilty. He claimed to be tried. 6. In order to prove its case, the prosecution examined as many as 7 (seven) witnesses, including the Medical Officer (P.W. 6), who performed the autopsy on the dead body of the deceased and the Investigating Officer (P.W. 7). 7. After examination of the prosecution witnesses, the accused person was examined under Section 313 Cr.P.C. He admitted that he had assaulted his son by means of a hammer and an axe causing the death of his said son. He also admitted that the prosecution witnesses, namely, Ms. Padmamaya Thapa (P.W. 2) and Ms. Dambar Kumari (P.W. 3) had appeared in the place of occurrence and saw the incident. 8. Though the accused person, during his examination under Section 313 Cr.P.C., took the plea that he was suffering from mental disorder, at the relevant time, no evidence has been adduced in support of his plea of insanity, if any. In fact, the accused person declined to adduce any defence evidence. 9. Considering the evidence, on-record, the learned Sessions Judge came to the findings that the prosecution could prove the case against the appellant, beyond all reasonable doubt and recorded the conviction and the sentence, as indicated above. 10. Mr. K. Goswami, learned Amicus Curiae, appearing for the appellant, referring to the evidence, on-record, has submitted that, though there is sufficient evidence regarding involvement of the appellant, there is no material to show that the appellant had assaulted his son with intention to cause his death. Therefore, it is submitted that the prosecution failed to prove that the appellant had committed the offence, as defined under Section 300 IPC, punishable under Section 302 IPC. Therefore, it is submitted that the appellant is entitled to benefit of doubt with regard to intention of causing the death. 11. Controverting the said argument, advanced by the learned Amicus Curiae, Mr. Therefore, it is submitted that the appellant is entitled to benefit of doubt with regard to intention of causing the death. 11. Controverting the said argument, advanced by the learned Amicus Curiae, Mr. D. Das, learned Additional Public Prosecutor, has submitted that the entire facts and circumstances of this case, coupled with the direct evidence, given by two eye witnesses i.e. P.W. 2 and P.W. 3, it has been established beyond all reasonable doubt that the appellant, with intention to cause the death, had assaulted his unarmed minor son with an axe and a hammer. 12. It is also submitted that the fact, that the assault was made with heavy objects like, axe, a hammer on vital parts of the body i.e. on head, clearly indicates that the accused person had the intention to cause the death of the deceased. 13. In view of the above, the learned Additional Public prosecutor has submitted that the learned Sessions Judge committed no error by holding the appellant guilty of the offence under Section 302 IPC and as such, the impugned judgment and order needs no interference. 14. Having heard the learned Counsel, appearing for both the parties, we have carefully perused the evidence, on-record. 15. The Medical Officer (P.W. 6), who performed the post mortem examination, on the following day i.e. on 04.04.2010, has submitted that he found the following injuries in respect of the dead body of the deceased: "In the occipital parietal region there is fracture of the bones and a wound of 8 cm length 3 cm breadth through which brain matters is coming out. No other injury is detected in the body. Fracture of the occipital and parietal (left) are found through which brain matter is coming out. Brain membrane ruptured. Injury is anti mortem in nature" He opined that the cause of death was shock and hemorrhage following brain injury. Ext. 5 is the post mortem report and Ext. 5(1) is her signature." The evidence of the said Medical Officer, with regard to the nature of the injuries and the cause of death, remained undemolished. Therefore, it is found established that the deceased died due to the head injury sustained by him. From the medical evidence, it also appears that the injuries were caused on vital part of the body i.e. on the head. Therefore, it is found established that the deceased died due to the head injury sustained by him. From the medical evidence, it also appears that the injuries were caused on vital part of the body i.e. on the head. Hence, it has been established that the deceased died due to the said injuries caused on his head. 16. P.W. 1 Mr. Shravan Thapa, who was the brother of the appellant, lodged the FIR. He has exhibited the said FIR as Ext. 1. In the said FIR, it has been clearly mentioned that the appellant i.e. the father of the deceased, had caused the death of his son with an axe inside his house. However, P.W. 1 did not see the occurrence himself. According to P.W. 1, hearing cries in the house of the appellant, he rushed to the appellant's house and found him inside the house with an axe in hand. He further stated that the axe was stained with blood and the appellant's eight years old son i.e. the deceased was lying smeared with blood. Though P.W. 1 was cross-examined on behalf of the defence, no material contradiction could be elicited to render his evidence disbelievable. 17. From the evidence of P.W. 1, it is clearly found that the appellant was found with the weapon of assault i.e. blood stained axe, near the dead body of the deceased inside his house. The said evidence that the appellant was found armed with the blood stained axe near the dead body, inside his house, is a strong circumstance, clearly leading to believe that none other than the appellant had caused the death of the deceased. 18. Supporting the evidence of P.W. 1, Ms. Padmamaya Thapa, who was the grandmother of the deceased, deposing as P.W. 2, stated that, hearing cries, she rushed to the house of the appellant and saw the latter, hacking his son with an axe in the bedroom. According to this witness, though she had tried to resist the accused person, she could not do so. She clearly stated that the deceased died due to the assault caused by the accused person. She also stated that, at the relevant time, the mother of the deceased had gone to attend her work. According to this witness, though she had tried to resist the accused person, she could not do so. She clearly stated that the deceased died due to the assault caused by the accused person. She also stated that, at the relevant time, the mother of the deceased had gone to attend her work. Therefore, from the evidence of P.W. 2, it is found that, at the relevant time, there was none other than the appellant and the deceased in their house. 19. The evidence, given by P.W. 2, regarding involvement of the appellant, could not be discredited. In her cross-examination, she stated that the appellant used to consume sleeping tablets. She being the mother of the appellant would have been the best person to say about the mental condition of the accused person. She clearly stated that the appellant was not suffering from any insanity. Therefore, we find no force in the plea, taken by the appellant, that he was suffering from mental disorder. That apart, there is no substantive evidence in support of the said plea. Hence, considering the evidence, given by P.W. 2 i.e. mother of the deceased, it can be safely concluded that the appellant, without any provocation, or any other compelling circumstances, had assaulted his son causing his death. 20. Supporting the evidence of P.W. 2, Ms. Dambar Kumari, who a was neighbor of the appellant, deposing as P.W. 3, stated that, hearing hue and cries, she rushed to the house of the appellant and found the appellant assaulting his son brutally with a hammer and that the hammer, being snatched away by her, the appellant took up an axe and inflicted injuries on his son causing his death. She further stated that due to the intervention, made by her, the appellant had also assaulted her causing injury on her neck. She also exhibited her statement, made under Section 164 Cr.P.C. as Ext. 4. Despite cross-examination, made by the defence, no material contradiction could be brought out to render her evidence disbelievable. We find sufficient corroboration in the evidence of the witnesses i.e. P.W. 2 and 3. 21. P.W. 4, Mr. Navaraj Chetri, husband of P.W. 3, stated that he also rushed to the house of the appellant and found that the appellant was tied up by the villagers. We find sufficient corroboration in the evidence of the witnesses i.e. P.W. 2 and 3. 21. P.W. 4, Mr. Navaraj Chetri, husband of P.W. 3, stated that he also rushed to the house of the appellant and found that the appellant was tied up by the villagers. He further stated that the Police seized an axe and a hammer from the place of occurrence by Ext. No. 2. He has exhibited his signature in the said seizure list as Ext. No. 2(2). P.W. 3 has also stated about the use of two weapons i.e. firstly, a hammer and secondly, an axe. The seizure of blood stained hammer and axe from the place of the occurrence, coupled with the evidence, given by P.W. 2 and 3, lead to the conclusion that the said weapons were used in causing the fatal injuries on the deceased. 22. P.W. 5, Mr. Dilip Newar, stated that hearing noise, he rushed to the house of the appellant and found a huge gathering and the appellant, who was kept in tied up condition. According to this witness, he could know that the appellant had caused the death of his son. He further stated that he saw blood stain on the ground and that Police had seized one axe and one hammer from the place of occurrence. He also witnessed to the said seizure and he has exhibited the seizure list as Ext. No. 2 and his signature thereon as Ext. No. 2(3). During the evidence, P.W. 5 witnessed the said exhibits as Material Ext. A and B. 23. The I.O., who had conducted the investigation, has been cross-examined as PW-7. He has exhibited the charge-sheet, submitted by him as Ext. No. 7 and his signature thereon as Ext. No. 7(1). He stated that charge-sheet was submitted by S.I. Mr. Ganesh Kr. Barman. He has exhibited the charge-sheet as Ext. No. 7. Though the I.O. was cross-examined by the defence, no contradiction could be elicited to discredit the prosecution witness. 24. From the above discussed evidence, it is clearly found that two eye witnesses i.e. P.W. 2 and P.W. 3 saw the appellant assaulting the deceased and causing his death. Ganesh Kr. Barman. He has exhibited the charge-sheet as Ext. No. 7. Though the I.O. was cross-examined by the defence, no contradiction could be elicited to discredit the prosecution witness. 24. From the above discussed evidence, it is clearly found that two eye witnesses i.e. P.W. 2 and P.W. 3 saw the appellant assaulting the deceased and causing his death. From the above, it is found that, despite removal of the hammer, which was initially used by the appellant in assaulting the deceased, the appellant had again picked up another heavy weapon i.e. axe and continued to inflict blows on the head of the deceased. 25. The fact that the appellant had used two heavy weapons i.e. one hammer and one axe, that too on the vital part of the body i.e. on the head, clearly indicates that the appellant had assaulted his 8 (eight) years minor son with an intention to cause his death. 26. The evidence, given by the said two eye witnesses and the seizure of the said blood stained weapons of assault from the place of occurrence conclusively lead to the findings that the appellant had caused the death of the deceased. We have already discussed that the appellant failed to substantiate his plea of insanity or any other compelling circumstances. Hence, there can be no other conclusion than that the appellant had intentionally caused the death of the deceased. The circumstantial evidence, that the appellant was found with the said blood stained weapons near the injured body of the deceased in his house, that they were alone in the said house since prior to the said incident and the medical evidence regarding nature of injuries and the weapons used, the seizure of blood stained axe and hammer from the place of occurrence, supports the prosecution version. That apart, the appellant, during his cross-examination, under Section, 313 Cr.P.C., has clearly admitted that he caused the death of his son in the alleged way. The said admission also lends sufficient support in favour of the evidence, given by the above stated prosecution witnesses. 27. In view of the above, we find no difficulty in holding that the appellant, with intention to cause death of his son, had assaulted him and thus, he committed the offence punishable under Section 302 IPC. 28. The said admission also lends sufficient support in favour of the evidence, given by the above stated prosecution witnesses. 27. In view of the above, we find no difficulty in holding that the appellant, with intention to cause death of his son, had assaulted him and thus, he committed the offence punishable under Section 302 IPC. 28. In view of the above, what has been discussed above, we find that the learned trial Court committed no error by convicting and sentencing the appellant under Section 302 IPC. Therefore, we find no merit in this appeal requiring interference. Accordingly, the appeal is dismissed. The impugned conviction and sentence are upheld and affirmed. 29. Before we part with this record, we acknowledge with appreciation the service, rendered by Mr. K. Goswami, learned Amicus Curiae and accordingly we order that an amount of Rs. 7,500/- (Rupees Seven Thousand Five Hundred) be paid to the learned Amicus Curiae, as his remuneration, by the Assam State Legal Services Authority. Return the LCR.