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2016 DIGILAW 1 (GAU)

Bijoy Das v. State of Assam

2016-01-04

C.R.SARMA, PARAN KUMAR PHUKAN

body2016
JUDGMENT : C.R. Sarma, J. Heard Mr. T.H. Hazarika, Learned Amicus Curiae for the appellant. Also heard Ms. S. Jahan. Learned Addl Public Prosecutor. 2. This appeal is directed against the judgment and order dated 28.6.2012 passed by the learned Addl. Sessions Judge, (FTC), Tezpur, Sonitpur in Sessions Case No. 186/08, whereby and where under the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to suffer imprisonment for life and pay fine of Rs.3000/- in default suffer another period of 6 months. 3. Aggrieved by the said conviction and sentence the appellant from jail has come up with this appeal. There being none to represent the appellant, Mr. T.H. Hazarika has been engaged to represent the appellant as Amicus Curiae. 4. The prosecution case, in brief, is that, on the night of 16.5.2008, the appellant had caused the death of his brother Sri Bijoy Das (hereinafter called the deceased) after assaulting him in their courtyard. The wife of the deceased came to know about the incident on the next morning and she lodged an FIR with the police. On receipt of the FIR police registered a case under Section 302 IPC, launched investigation in this matter. During the investigation police visited the place of occurrence, prepared the inquest report in respect of the dead body, which was lying in the courtyard of the deceased, sent the same for post mortem examination and examined the witness. 5. At the close of the investigation police submitted charge sheet against the appellant under Section 302 IPC. The offence being exclusively triable by the Court of sessions, the learned SDJM, Sonitpur committed the case to the Court of Sessions and the learned Sessions Judge framed charge under Section 302 IPC against the accused. The charge was read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined 8 witnesses including the Medical Officer (PW-3), who performed the autopsy on the dead body and the Investigating Officer (PW-8). The charge was read over and explained to the accused person, to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution examined 8 witnesses including the Medical Officer (PW-3), who performed the autopsy on the dead body and the Investigating Officer (PW-8). After examination of the prosecution witness, as the accused person was examined under Section 313 Cr.P.C. While denying the allegations, brought against him, the accused person stated that the deceased, being drunk, had picked up a quarrel with him and in the scuffle which took place between them, the deceased had sustained injury on his head. The accused further stated that he also sustained injuries and that he had informed the matter to the Line chowkidar. Considering the evidence, on record, the learned Addl. Sessions Judge convicted and sentenced the appellant as indicated above. 7. Mr. T.H. Hazarika, learned Amicus Curiae appearing for the appellant, has submitted that as per medical evidence the deceased sustained only one injury on his head and the death was caused by a blunt object. Referring to the said injury, sustained by the deceased and the statement made by the appellant under Section 313 Cr.P.C., the learned Amicus Curiae has submitted that the appellant had no intention to cause the death of the deceased and that he sustained injury, in the scuffle, due to quarrel picked up by the deceased. In view of the said facts and circumstances and the single injury sustained by the deceased, the learned Amicus Curiae has submitted that the conviction and sentence, under Section 302 IPC, cannot be maintained and as such the same is liable to be set aside. The learned Amicus Curiae has also submitted that the offence committed by the appellant can at best fall under Section 304(II) IPC. It is also submitted that the appellant has already undergone imprisonment for about 7 years 7 months and as such he may be released, treating the period already undergone as sentence under Section 304(II) IPC. 8. Controverting the said argument advanced by the learned Amicus Curiae, Ms. It is also submitted that the appellant has already undergone imprisonment for about 7 years 7 months and as such he may be released, treating the period already undergone as sentence under Section 304(II) IPC. 8. Controverting the said argument advanced by the learned Amicus Curiae, Ms. S. Jahan, learned PP has submitted that there is sufficient evidence, more particularly, the extra judicial confession made before PW-1 and PW-2 to show the appellant had caused the death of the deceased and that the learned trial Judge committed no error or illegality by recording the conviction and sentence aforesaid. 9. Having heard the learned counsel for both the parties, we have carefully perused the evidence, on record. Though the prosecution has examined as many as 6 (six) independent witnesses, PW-4, PW-5 and PW-7 refused to support the prosecution version and as such they were declared hostile and cross examined by the prosecution. Despite their cross examination, no incriminating material could be elicited against the appellant. The wife of the appellant, who deposed as PW-1, clearly stated that coming to know about the incident, on the next morning she visited the house of the appellant and found the dead body of her husband i.e. the deceased lying in the courtyard of the appellant. She further stated that the appellant had confessed before her stating that he had killed his brother i.e. the deceased. Though this witness was cross examined by the defence no contradiction could be elicited and her evidence regarding extra judicial confession remained un-demolished. 10. PW-2, Sri Daniel Munda, who was the Line Chowkidar, stated that he visited the place of occurrence and that the appellant had confessed that he had killed his brother. He denied the suggestion that he did not tell the police that the appellant had confessed before him that he had killed his brother. The said contradiction has been proved through the Investigating Officer (PW-8), who stated that PW-2 did not tell him that the appellant had confessed before him. Hence it appears that the statement made by PW-2, regarding extra judicial confession, was the first time made before the Court, at the time of trial. Failure of this witness to disclose about the said judicial confession during his examination under Section 161 CrPC, raises doubt about the veracity of his evidence. 11. Hence it appears that the statement made by PW-2, regarding extra judicial confession, was the first time made before the Court, at the time of trial. Failure of this witness to disclose about the said judicial confession during his examination under Section 161 CrPC, raises doubt about the veracity of his evidence. 11. Shri Harish Das, who was examined as PW-6 stated that he did not know about the incident. 12. The Medical Officer, who performed the post mortem examination in respect of the dead body of the deceased, deposed as PW-3. He found the following injury in respect of the dead body of the deceased :- "Fracture of right temporal skull bone and occipital bone with lacerated brain and membrane." He found no other injury. The said Medical Officer opined that the death was caused due to head injury, as a result of blunt trauma, which was ante mortem in nature. From the said medical evidence it appears that the injury was caused by a blunt object. The Investigating Officer (PW-8) seized a stone vide Exhibit No. 3 from the place of occurrence, on being produced by the accused. He has exhibited the seized stone as Material Exhibit-1. There is no denial that the said stone was seized by the Investigating Officer from the place of occurrence, on being produced by the accused. Admittedly, the stone is a blunt object. 13. In view of the above, there is no difficulty in understanding that the injury, in respect of the appellant, was caused with the said stone. 14. The evidence of PW-1 i.e. the wife of the appellant sufficiently led to find that the accused had made confessional statement before her immediately after her arrival at the place of occurrence i.e. the courtyard of the appellant. We find no reason to belief that the wife of the deceased would have falsely implicated the appellant, leaving the actual culprit. Therefore, her evidence regarding extra judicial confession inspires confidence to belief that the appellant had made the extra judicial confession, indicating his involvement. This is supported by the statement made by the accused person under Section 313 Cr.P.C. 15. In view of the above, considering entire aspects of the matter, we have no hesitation in holding that the accused had caused the death of the deceased by inflicting the injury on his head with a stone i.e. a hard object. 16. This is supported by the statement made by the accused person under Section 313 Cr.P.C. 15. In view of the above, considering entire aspects of the matter, we have no hesitation in holding that the accused had caused the death of the deceased by inflicting the injury on his head with a stone i.e. a hard object. 16. From the medical evidence it appears that only one blow was given by the accused on the head of the deceased. If the appellant had any intention to cause the death of the deceased he could have given several blows on the head or other vital parts of the body of the deceased. The fact that the appellant had given a single blow, on the head of the deceased indicates that he had no intention to cause the death of the deceased. The wife of the deceased i.e. PW-1 stated that her husband i.e. the deceased was in the habit of consuming liquor. The appellant, in his statement under Section 313 Cr.P.C., stated that the deceased, who was in drunken state, had picked up a quarrel with him and that he sustained a injury in scuffle that took place between them. We find no reason to disbelieve the said version of the appellant. Therefore, considering the entire facts and circumstances of the case it appears that the appellant had given the said blow, in a sudden fight in the heat of passion upon a sudden quarrel, without any premeditation to cause the death of the deceased. 17. In view of the above, we find no sufficient reason to hold the appellant is guilty of the offence under Section 302 IPC. The evidence on record, as discussed above, leads to belief that the appellant had caused the offence under Section 304 (II) IPC. Therefore, we modify the conviction under Section 302 IPC to one under Section 304(II) IPC. Accordingly sentence is converted to the period already undergone by the appellant. 18. With the above, the appeal is partly allowed. The appellant be set at liberty forthwith if not required in any other case. 19. Before we part with this record we acknowledge with appreciation the services rendered by Mr. T.H. Hazarika as Amicus Curiae. We order an amount of Rs. 7500/- be paid to the learned Amicus Curiae by the State Legal Services Authority as his remuneration 20. Return the LCR.