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2016 DIGILAW 661 (GAU)

Sri Krishna Das v. State of Assam

2016-07-20

AJIT SINGH, SUMAN SHYAM

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JUDGMENT AND ORDER : Suman Shyam, J. The sole appellant Krishna Das has been convicted under Section 302/447 of the Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for life and also to pay fine of Rs. 5,000/-, in default whereof, to suffer rigorous imprisonment for another six months. 2. The prosecution case in brief, is that on 10/03/2007 at about 6-30 p.m., taking advantage of the absence of the husband of the informant Boby Das, the appellant had tried to outrage her modesty. When the informant Boby Das had raised a hue and cry, her elder brother Bharat Das and her younger brothers Biju Das and Ridip Das come running to her rescue from the nearby house. However, the appellant had severely injured Ridip Das with a dao causing grievous injury upon him resulting to his death. That apart, Srimanta Das, the son of the appellant had also severely injured Bharat Das and Biju Das by hacking them in several parts of their body and had thereafter fled away. 3. An ejahar was lodged on 12/03/2007 at the Demow Police Station in the district of Sivasagar by Smt. Boby Das informing the said incident. On the basis of the ejahar, Demow Police Station Case No. 16/2007 was registered under Section 354/511/326/34 of the Indian Penal Code and the matter was investigated by Assistant Sub-Inspector of Police Shri Rajani Kanta Saikia, who had submitted charge sheet against the appellant. On receipt of the case on transfer, the learned Additional Sessions Judge (FTC), Sivasagar had framed charges, where after the case was put to trial. Eventually, the trial Court had convicted the appellant under Section 302 IPC for committing the murder of Ridip Das. 4. The prosecution side had examined as many as 19 witnesses including the complainant Boby Das whereas the defence side had examined 2 witnesses. In her testimony, the informant Boby Das (PW-1) had deposed that on the date of the incident at around 6 p.m. when she was at her home with her 3 children, aged about 8 years, 7 years and 4 years, the appellant come to her house and asked for water. The appellant is the brother of the husband of Boby. In her testimony, the informant Boby Das (PW-1) had deposed that on the date of the incident at around 6 p.m. when she was at her home with her 3 children, aged about 8 years, 7 years and 4 years, the appellant come to her house and asked for water. The appellant is the brother of the husband of Boby. When she gave him water outside the house, he did not take his seat and after taking the water the appellant had tried to catch hold of her by pulling her clothes. When she shouted for help by calling her brothers, who lived nearby, the deceased Ridip Das come to her house running and asked the appellant as to why he has been behaving in that manner with his sister. On that, the appellant dealt a dao blow on the head of Ridip Das, as a result of which Ridip fell down. He was taken to Demow hospital and later on shifted to the Assam Medical College and Hospital at Dibrugarh where he died. 5. PW-1 claimed herself to be an eye witness of the incident in which grievous injury was caused to Ridip Das by the appellant by means of a dao. She has also deposed that the incident had occurred in her house and finding the dao, with which the incident was caused, in her campus, the same was handed over to the Police by her on the following morning which was seized by the Police. PW-1 had also deposed that she had latter come to know from her sisters-in-law Mamoni Das, Dehi Das and Rita Das that Simanta Das i.e. the son of the appellant had also injured her brothers Bharat Das and Biju Das by cutting them. During her cross examination, the PW-1 had stated that the distance between her house and that of her mother is less than one furlong. During the cross-examination, the witness had remained firm about the fact that she was an eye witness to the incident and stated that her neighbours Konpai Das and Kalia Das had also seen the appellant cutting Ridip Das. The witness denied the suggestion made by the prosecution that Ridip was having a love affair with the daughter of the appellant and that her brothers had objected to Ridip's marrying that girl. 6. The witness denied the suggestion made by the prosecution that Ridip was having a love affair with the daughter of the appellant and that her brothers had objected to Ridip's marrying that girl. 6. Shri Konpai Das (PW-2) is a neighbour of the informant and he had deposed that on the date of the incident, having heard the hue and cry from the house of the informant, he come out of his house to find out as to what was happening when he saw appellant Krishna Das hacking Ridip Das with a dao. The PW-2 had deposed that at that time, a lamp was burning in the courtyard near the veranda of the house of Boby Das and seeing the incident he went inside the house out of fear. 7. PW-6 Sri Kalia Das is another eye witness to the incident who had also deposed before the Court that on the date of the incident at about 6 p.m., hearing commotion from the side of Boby's house, he had come out of his house and saw, in the light of a lamp, that the appellant was hacking Ridip Das with a dao and out of fear he entered inside his house. Later on, he had come to know that on the following day Ridip Das had died in a hospital in Dibrugarh. The witness PW-6 had also deposed that he had seen injuries sustained by Biju Das and Bharat Das after they were brought home from the hospital. During his cross examination, the defence side could not discredit the two eye witnesses i.e. PW-2 and PW-6. 8. PW-7 Shri Sarubhai Das is an independent witness examined by the prosecution who has deposed before the Court that on the day of the incident at about 6-30 p.m. Ridip Das, Pankaj Das and he were sitting in front of the pan shop at Paskanda Tal when the appellant had called away Ridip.PW-7 Sarubhai has also deposed that he had seen the appellant carrying a dao in his back. After about half an hour he heard hue and cry from the house of Ganesh Das (husband of Boby) and later on he had come to know that the appellant had cut Ridip Das, Bharat Das and Biju Das. On the following morning he had heard that Ridip Das has died in Dibrugarh hospital. 9. After about half an hour he heard hue and cry from the house of Ganesh Das (husband of Boby) and later on he had come to know that the appellant had cut Ridip Das, Bharat Das and Biju Das. On the following morning he had heard that Ridip Das has died in Dibrugarh hospital. 9. Shri Pankaj Das has been examined as PW-8, who was one of the person sitting in front of the pan shop with Ridip Das and Sarubhai Das at 6-30 p.m. on the date of the incident. PW-8 had corroborated the version given by the witness PW-7 to the effect that it was the appellant who had come there and had a talk with Ridip and then both of them left the place together. After about half an hour of their departure, he had heard commotion at the house of "Petua Das" (husband of Boby) and later on he come to know that the appellant had cut Ridip Das. During the cross examination, the testimony of PWs -7 and 8 could not be discredited by the defence side. We also do not find any cogent reason to disbelieve the version given by the PWs 7 and 8. Therefore, if the version of the witnesses PWs 7 and 8 is taken to be correct than in that case it is evident that on the day of the incident the appellant had called Ridip Das while he was sitting in front of the pan shop along with the PWs 7 and 8 and thereafter, took him to the house of the informant (PW-1) following which the incident had occurred. As such, the prosecution story given on the basis of the complaint made by the PW-1 that the appellant had tried to outrage her modesty does not appear to be true. If the appellant had come out of the house and returned back along with the deceased Ridip Das at about 6-30 p.m. on the date of the incident than he could not have made an attempt to outrage the modesty of the informant around the same time as alleged by her. Moreover, except the PW-1, no other witness had supported her version. Taking note of the aforesaid facts situation, the trial Court had also rightly acquitted the appellant of the charges framed under Section 354 of the Indian Penal Code. Moreover, except the PW-1, no other witness had supported her version. Taking note of the aforesaid facts situation, the trial Court had also rightly acquitted the appellant of the charges framed under Section 354 of the Indian Penal Code. Be that as it may, the issue raised in the present appeal is as regards the legality and validity of the conviction of the appellant under Section 302/447 of the Indian Penal Code and as such we confine our discussions and decision to the aforesaid point alone. 10. From an analysis of the evidence of PW-14 Smt. Ghanamai Das, it is evident that she is also an eye witness to the incident and has corroborated the version given by PWs 7 and 8. The said witness had also deposed that at the time of the occurrence, hearing the hue and cry, she went towards the house of Smt. Boby Das and in the courtyard of Boby Das, she saw the appellant dealing a cut blow on the head of Ridip with a dao. 11. On 11/03/2007, post-mortem examination was conducted on the dead body of Ridip Das, where after the following injuries were found on his body :- "1. One stitched wound over the back of head obliquely placed at 10 cm, with 10 silk threads, extending from 11 cm from left mastoid at 6 cm from right mastoid process. On opening a incised looking lacerated wound, with underlying hematoma. Depressed fracture of left occipito-parietal region, with bilateral subdural hemorrhage, sub-arachnoid hemorrhage. 2. Abrasion of 2 cm x 2 cm over later side of the left eye - reddish in colour. 3. Abrasion of 3 cm x 2 cm over left angle of the left side of the lip-reddish in colour." 12. Dr. Dhrubajyoti Deka, who had conducted the post-mortem examination on the dead body of Ridip Das was examined as PW-15 who had confirmed the findings recorded in the post-mortem report (Ext-13). Dr. Deka had opined that the death was caused due to Coma consequent to head injury sustained as per description contained in the report. He has also confirmed that the injuries were ante mortem and caused by blunt force impact which was homicidal in nature. 13. Dr. Deka had opined that the death was caused due to Coma consequent to head injury sustained as per description contained in the report. He has also confirmed that the injuries were ante mortem and caused by blunt force impact which was homicidal in nature. 13. A careful scrutiny of the evidence on record, more particularly, the testimony of the eye witnesses PWs 1, 2, 5, 6 and 14 leaves no manner of doubt that the incident had occurred on 10/03/2007 at around 6-30 p.m. in the courtyard of Smt. Boby Das (PW-1) wherein the deceased Ridip Das was dealt fatal blows by the appellant with a dao (machete) which has resulted into his death. The question, therefore, would arise as to why did the informant then come up with a false story regarding outraging of her modesty by the appellant and as to what was the motive behind the murder. 14. The defence side had examined Smt. Anamika Das as DW-1 who had deposed before the Court that on the date of the incident her Aunt Boby Das had called her to her (Bobby's) house and asked her to prepare food. Thereafter, leaving her alone, Boby went to fetch water when the deceased Ridip Das i.e. the brother of Boby had come to the house and finding the DW-1 alone had grabbed her, tore her clothes, bit her on her mouth and got on top of her. When she shouted to her mother, she come running and tried to separate her from Ridip when he had dealt a blow on the left arm of her mother. 15. Smt. Saruful Das i.e. the wife of the appellant and mother of Smt. Anamika Das (DW-1) was examined as DW-2, who had categorically deposed that on the date of the incident, Boby, due to her periods, had called her daughter to cook food and when Boby went out of her house, Ridip arrived there and did bad act with her daughter Anamika Das. DW-2 had also stated that when Ridip Das was pulling Anamika's clothes, she called her and when Saruful arrived there, she found Anamika in a naked state. While she tried to rescue Anamika, Ridip dealt a dao blow on her left arm. She thereafter left with her daughter for their house. DW-2 had also stated that when Ridip Das was pulling Anamika's clothes, she called her and when Saruful arrived there, she found Anamika in a naked state. While she tried to rescue Anamika, Ridip dealt a dao blow on her left arm. She thereafter left with her daughter for their house. Thus, the DW-2 corroborates the testimony of the DW-1, which goes to show that Ridip Das had made an attempt to rape Anamika, the daughter of the appellant earlier in the day, on the date of the incident. 16. After scanning the materials available on record, we find that the deceased Ridip Das was a male aged about 20 years at the time of the incident and was trying to develop an affair with the daughter of the appellant Anamika Das against the wishes of the family members. Taking advantage of her sister's (Boby Das's) proximity with the family of the appellant, the deceased had made an attempt to outrage the modesty of Anamika Das in the house of the informant Boby Das. In that process, Ridip Das had also dealt a dao blow to the wife of the appellant when she tried to rescue her daughter from the hands of Ridip Das. When the matter was reported to the appellant in the evening, he went looking for Ridip Das and having found him gossiping with the PWs 7 and 8 in front of a pan shop, he had called Ridip along with him and come to the house of Boby Das so as to confront him with his misdemeanour towards the wife and daughter of the appellant. It was at that stage that a quarrel broke out between them which had led to the appellant dealing dao blows on the body of Ridip Das resulting into his death. Although, there is no medical report available on record indicating that the DW-2 Saruful Das had suffered any injury due to the dao blow allegedly dealt by Ridip Das on her left arm, yet, the version given by the defence witnesses clearly go to show that Ridip had made an attempt to molest the daughter of the appellant inside the house of Boby Das. From the bulk of the evidence available on record including the testimony of the eye witnesses, it is thus, established that the appellant had dealt dao blow on the person of deceased Ridip Das which had resulted into his death. The medical report also corroborates the eye witnesses account as regards the injury sustained by the deceased. In the same incident, the son of the appellant Srimanta had also struck dao blows upon Bharat and Biju, the two brothers of the deceased when they come in rescue of Ridip. Record reveals that accused Srimanta Das being a juvenile in conflict with law his case has been dealt with by the Juvenile Board. 17. We have already held that it was the appellant who had caused homicidal death to Ridip Das. However, having regard to the circumstances of the case noted above, we cannot be unmindful of the fact that the incident was triggered by the extreme misdemeanour on the part of the deceased Ridip Das, who had attempted to commit rape upon the daughter of the appellant earlier in the day of the incident. The attempt made by Ridip upon the daughter of the appellant happened in the house of Boby Das, the elder sister of the deceased, apparently with her connivance and later on Bobby was possibly trying to cover up the mis-deeds of her brother. This explains as to why Boby Das had come up with the false allegation against the appellant of trying to outrage her modesty. In the facts situation, it was quite natural for the appellant to have strongly reacted to atrocities meted out to his daughter and wife by the deceased Ridip. No father can be expected to maintain his cool after having heard about an attempt having been made to molest his daughter. Later on, when Ridip was confronted with his aforesaid conduct he had picked up a quarrel with the appellant which had further enraged the appellant. As such, in the fact situation of the case, provocation caused to the appellant must be held to be both grave and sudden. We are, therefore, of the opinion that the present case falls under the Exception-1 to Section 300 of the Indian Penal Code. The appellant was clearly a victim of the circumstances and hence, deserves a lesser sentence of seven years imprisonment instead of rigorous imprisonment for life or 10 years. 18. We are, therefore, of the opinion that the present case falls under the Exception-1 to Section 300 of the Indian Penal Code. The appellant was clearly a victim of the circumstances and hence, deserves a lesser sentence of seven years imprisonment instead of rigorous imprisonment for life or 10 years. 18. For the reasons stated above, this appeal stands partly allowed. The conviction of the appellant under section 302 of the Indian Penal Code and the sentence of Life Imprisonment are set aside. Instead, the appellant is convicted under section 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for 7 (Seven) years. The sentence of fine, however, stands affirmed.