Research › Search › Judgment

Tripura High Court · body

2016 DIGILAW 83 (TRI)

Janaram Noatia v. State of Tripura

2016-03-29

S.TALAPATRA, U.B.SAHA

body2016
JUDGMENT : Heard Mr. P.K. Biswas, learned senior counsel assisted by Mr. P. Majumdar, learned counsel for the appellant as well as Mr. A. Ghosh, learned PP appearing for the State. 2. By this appeal under Section 374(2) of the CrPC, the convict, the appellant herein, has challenged the judgment of conviction dated 03.05.2011 delivered in Sessions Trial No. 78/2010. Consequent to the judgment of conviction dated 03.05.2011 under Section 324/307 IPC, the appellant has been sentenced to suffer RI for seven years under Section 307 IPC and to pay a fine of Rs.5,000/, i.d. to suffer RI for six months. No sentence was imposed under Section 324 of the IPC. 3. The genesis of the prosecution case is rooted in the written ejahar filed by one Pintu Paul disclosing that on 05.07.2009 at about 12.00 noon a group of TSR Alpha Company was going from Borakha TSR Camp to take charge of Kobrakhamar CRPF Camp. On the way they stopped their journey in front of the Lalitbazar TSR 1st Bn Camp for the purpose of drinking water. While the group was sitting in that camp one Rifleman No.99010508, namely, Janaram Noatia of that Battalion got involved in a quarrel with one Pawan Kumar, Rifleman of Alpha company of Lalitbazar st Bn TSR. Janaram Noatia, the appellant herein, fired shots from his 7.62mm SLR with a view to killing Pawan Kumar at about 12.40 noon. Pawan Kumar sustained bullet injuries on his left arm. The other jawans of the camp rushed and apprehended Janaram Noatia. Janaram Noatia had fired shots from his 7.62mm SLR having Butt No. A/48 and Body No.CH9317. 4. On the basis of the said written ejahar dated 05.07.2009 Ranirbazar P.S. Case No. 34/2009 under Sections 326/307 IPC was registered and taken up for investigation. On completing the investigation, the final police report charges heeting the appellant was filed and as the offence punishable under Section 307 is exclusively triable by the Court of Sessions, the police papers were committed to the Sessions Judge, West Tripura, Agartala who in turn transferred the case papers to the Addl. Sessions Judge, Court No.3, West Tripura, Agartala. Charge was framed against the appellant under Sections 324/307 IPC separately to which the appellant pleaded innocence and claimed to be tried. 5. Sessions Judge, Court No.3, West Tripura, Agartala. Charge was framed against the appellant under Sections 324/307 IPC separately to which the appellant pleaded innocence and claimed to be tried. 5. To substantiate the charge, prosecution adduced as many as 11 witnesses including the injured Pawan Kumar, PW1 and the Investigating Officer Sri Pranab Sengupta, PW10. The prosecution had also introduced as many as nine documentary evidence including the injury report, exhibit-9 and the Ballistic report, exhibit-4. After recording the evidence, the appellant was examined under Section 313 CrPC and thereafter by the impugned judgment he was convicted under Section 307/324 IPC. 6. Mr. Biswas, learned senior counsel for the appellant has submitted that the conviction under Section 307 IPC is not at all sustainable for absence of any evidence as to the intention or knowledge that the act of the appellant would cause death and he would be guilty of murder. According to Mr. Biswas, the appellant suddenly reacted and triggered off and such act does not reflect any act or such intention or knowledge under the circumstances that he by that act would cause death. A plain reading of Section 307 IPC, according to Mr. Biswas, is that intention must preexist before the act. From the act itself even though the intention can be gathered but it all depends on the circumstances, related to the transaction of crime. 7. Mr. Biswas has taken us to the oral testimonies of the witnesses, particularly, those who were present or had rushed immediately after the occurrence and he has tried to show that the victim PW1 himself has stated that there was no quarrel but only he addressed him as ‘friend’ and asked him a question that ‘where they are going?’ and the appellant reacted sharply and opened fire targeting him and he in order to save himself hid behind a tree. Thereafter, the other jawans who were nearby captured the appellant and disarmed him. Mr. Biswas has further submitted that from a plain reading of the evidence it would be apparent that there are two versions, incoherent to each other, exist in the evidence. One version is that on a simple invocation of the PW1, the appellant opened fire. The other version is that there was a quarrel and in the transaction of quarrel the appellant opened fire. But at the same time, Mr. One version is that on a simple invocation of the PW1, the appellant opened fire. The other version is that there was a quarrel and in the transaction of quarrel the appellant opened fire. But at the same time, Mr. Biswas has submitted that whatever circumstance is taken into consideration, this Court cannot arrive at an inference that the appellant had any intention or knowledge that his act would cause the death of PW1. As such the appellant is entitled to get acquittal from the charge under Section 307 IPC. 8. While making his submission on the conviction under Section 324 of the IPC, Mr. Biswas has submitted that even if the entire evidence is believed, the charge under Section 324 of the IPC is not maintainable in view of the fact that there was grave and sudden provocation and as such the charge would be under Section 334 of the IPC which provides that whoever voluntarily causes hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. 9. Mr. Ghosh, learned PP in order to refute the submission of Mr. Biswas has submitted that Section 334 IPC cannot be pressed in this occasion because it excludes the person who provoked the accused. Mr. Ghosh, learned PP has further submitted that the injury in this case did not occur to any other person other than the person who has alleged to have provoked. As such, this provision of Section 334 of the IPC cannot be applied for any purpose. This Section is exclusively for the injuries received by the other persons who gave no grave or sudden provocation. Mr. Ghosh, learned PP has fairly submitted that from the entire circumstances it appears that the appellant did not have any intention or knowledge that by his act the victim PW1 might be killed. But Mr. Ghosh, has emphatically submitted that abundance of evidence is available in the records to establish the charge under Section 324 IPC. Mr. Ghosh, learned PP has fairly submitted that from the entire circumstances it appears that the appellant did not have any intention or knowledge that by his act the victim PW1 might be killed. But Mr. Ghosh, has emphatically submitted that abundance of evidence is available in the records to establish the charge under Section 324 IPC. There is medical record and there is sufficient evidence that the said hurt was caused by a dangerous weapon and as such he strongly refuted the submission that the charge under Section 324 of the IPC is not maintainable. 10. For the purpose of appreciating the rival submission, this Court has to take a short survey of the evidences recorded by the trial court. PW1, Pawan Kumar, has stated in the trial that when the TSR party reached in their camp he humbly asked one Janaram Noatia, the appellant herein, “Friend, where are you going?” The appellant became angry and shot him from his rifle. On seeing his attempt of shooting, he hid himself behind a tree but the bullet shot his hand. As a result he sustained bullet injury. In the cross-examination however he has admitted that he did not state to the investigating officer that he had asked Janaram the question that has been quoted above. 11. PW2, Naik Subedar Pintu Paul, is the informant who lodged the ejahar. He has stated that on 05.07.2009 he was posted as Camp Incharge of the Lalitbazar TSR Camp. On that day, one TSR party from Borakha was proceeding towards Kobrakhamar headed by Havildar Sishir Dutta. That party came to their camp and was taking rest and having water. When he was in his office he heard a sound of firing and noticed the movement of the jawans. He came out of his office and rushed to the spot which was located at the rear side of his office. He heard that there was some hot altercation between Janaram Noatia and Pawan Kumar. Thereafter, Janaram shot from his rifle to Pawan Kumar. Pawan sustained bullet injury in his arm. Jawans of the camp also came to the spot and disarmed Janaram Noatia. He informed the Officer In-Charge, Ranirbazar PS about the occurrence and indentified his written ejahar and also the seized rifle (SLR A/48) and empty cartridges of the said rifle (Exhibit MO1 series). 12. Pawan sustained bullet injury in his arm. Jawans of the camp also came to the spot and disarmed Janaram Noatia. He informed the Officer In-Charge, Ranirbazar PS about the occurrence and indentified his written ejahar and also the seized rifle (SLR A/48) and empty cartridges of the said rifle (Exhibit MO1 series). 12. PW3, Laxmindar Munda has stated that he heard the sound of firing at about 12 noon on 05.07.2009 and rushed to the place of occurrence. He saw the injured Pawan Kumar and Pawan told him that the appellant opened fire targeting him from his rifle and he sustained bleeding injury in his hand. Thereafter, he along with others jawans disarmed Janaram, the appellant. 13. PW4, Rabindra Roy, followed the same suit but he has imparted very important information in the trial which has emanated from his examination of the seized arm, that the rifle was found in unloaded position and serviceable condition and he has also found on examination that the fire had taken place from the said SLR and the gas fouling was found inside the barrel. The empty cartridge is generally used in the 7.62 SLR and 7.62mm (BA) Rifles. He has identified his report of examination of the arms. 14. PW5, Ranjit Debbarma, has narrated the same story as PW3 but he has stated that he found the appellant standing by the side of Pawan Kumar holding the SLR rifle in hand. However, along with other jawans, he managed to disarm the appellant and took his arm into their possession and Pawan Kumar thereafter was sent to the hospital as Pawan Kumar sustained bleeding injuries from the shot as fired by the appellant on his left hand. 15. PW6, Radha Ballav Das, also followed the suit of PWs 3&5 and stated that when he came to the spot after hearing the sound of firing he found Pawan Kumar with bleeding injuries on his left hand. He also found the appellant standing there by the side of Pawan Kumar holding the SLR in his hand. The rear sentry and other jawans managed to disarm the appellant and took his arm into their custody. Police officers seized one 7.62 mm SLR along with one empty cartridge in his presence by preparing a seizure list. He also found the appellant standing there by the side of Pawan Kumar holding the SLR in his hand. The rear sentry and other jawans managed to disarm the appellant and took his arm into their custody. Police officers seized one 7.62 mm SLR along with one empty cartridge in his presence by preparing a seizure list. He identified the seizure list and his signature and also the SLR and the empty cartridges which were seized from the place of occurrence as exhibit MO1 series. 16. PW7, Rahim Miah, was not examined by the prosecution. 17. However, PW8, Shibu Ghatak was the Assistant Commandant posted in the said 1st Bn.TSR Borakha camp and has stated about the transit of the jawans. He has further stated about the occurrence that the appellant of Barakha Camp opened fire targeting one Pawan Kumar who sustained bleeding injury on his left hand. Getting information he along with the Commandant came to the said Camp at Lalitbazar and noticed the injury of Pawan Kumar. They also saw the SLR of Janaram Noatia bearing Butt No. A/48, registration No. 9317 of 7.62 SLR, which was seized from the appellant at Lalitbazar Camp. 18. PW9, Sri Manojit Sutradhar was doing his duty as the rear sentry on 05.07.2009 in between 12:30 hrs to 14:30 hrs. He heard the sound of firing and noticed Pawan Kumar sustained injury in his hand. He rushed to the spot and found the appellant standing on the spot with his SLR. In the meantime, other jawans of his camp also came to the spot and they disarmed the appellant and took his SLR in their possession. Thereafter, the police came and seized the SLR and arrested the appellant. Injured Pawan Kumar was shifted to the hospital for treatment. 19. PW10, Sri Pranab Sengupta investigated the case when he was the Officer in-Charge of the Ranirbazr Police Station. He has briefly stated how he had conducted the investigation, examined the witnesses, prepared the site map and thereafter collected the arms examination report. Having satisfied that a prima facie case under Section 307/324 IPC has been made out he filed the chargesheet. He also identified the seizure list at Exhibit-7. He has also collected the medical expert opinion on the injuries of the victim. 20. PW11, Dr. Having satisfied that a prima facie case under Section 307/324 IPC has been made out he filed the chargesheet. He also identified the seizure list at Exhibit-7. He has also collected the medical expert opinion on the injuries of the victim. 20. PW11, Dr. Sukamal Paul was the Medical Officer who was posted at the Ranirbazar Primary Health Centre on 05.07.2009 and when injured Pawan Kumar reported to that Hospital he examined him. According to him the following injuries were found on the person of Pawan Kumar: “1. Lacerated injury surrounding burn area-measuring 2cm by 1½ cm skin deep, fresh in nature with bleeds black area on surrounding skin, i.e. burn. 2. Another black area on palm i.e. burn measuring 2x3 inch proximal to the 1st, measuring 1/1½ inch, 3. Loss of skin on the tip of little finger on hand (left) measuring 2x3 cm with ½ cm with surrounding burn injury.” All the injuries were in the left hand and those were simple in nature. He identified the injury report as exhibit8. We have also seen the injury report exhibit8 and the arms examination report exhibit4. It has been clearly opined by PW4 that the shot was fired from that fire arm, namely, SLR 6062 mm and there are marks of gas fouling in that fire arm. In the injury report the Doctor has stated that the injuries are simple in nature. 21. Now we are to discuss the circumstances whether there is any evidence to find out that intention to kill or knowledge of the act that might cause murder was there with the appellant, or not. This is a very important component to establish a charge under Section 307 of the IPC. The Apex Court in Hari Kishan and State of Haryana Vs. Sukhbir Singh and Ors., reported in AIR 1988 SC 2127 has observed as under: “7. On the first question as to acquittal of the accused under S. 307/149, IPC, some significant aspects may be borne in mind. Under S. 307, 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". 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 S. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences 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 that case of Harikishan and State of Haryana (supra), there was a fight between the two parties and the Apex Court observed as under: “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 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 accidental owing to a sudden quarrel, the conviction under S. 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under S. 307, IPC.” 22. The circumstances which are attached to this occurrence is covered by the decision of the Supreme Court. The act was unleashed in response to an innocuous question that was posed to the appellant. He sharply reacted and opened fire and we do not find any material to show that he has the intention or knowledge to cause murder. Since that was an outcome of a sudden reaction and the subsequent act after shooting the first one, there had been no follow up act and from these circumstances this Court is satisfied that there was no intention to kill the victim. As such we are of the considered opinion that the appellant is liable to be acquitted from the charge under Section 307 IPC. Accordingly, he is acquitted. 23. As such we are of the considered opinion that the appellant is liable to be acquitted from the charge under Section 307 IPC. Accordingly, he is acquitted. 23. So far the argument as advanced by Mr. Biswas that the conviction under Section 324 IPC cannot be maintained rather if the materials as placed by the prosecution are believed and that the appellant has caused the injury by dangerous weapon, that commission should be brought under Section 334 of the IPC. As already submitted by Mr. Ghosh, we are inclined to accept his submission that Section 334 of the IPC is only applicable where out of sudden and grave provocation someone does any act injuring others who did not provoke. That section would only be applicable in the case when the persons who are injured did not commit or lead any provocation. In this case, we do not find that there is any material of grave and sudden provocation. In the celebrated case of K.M. Nanavati Vs. State of Maharashtra, reported in AIR 1962 SC 605 the Apex Court has laid the law which still governs the field observing that, the test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. For purpose of reference, passages from KM Nanavati (supra) are extracted hereunder: “85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to S. 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. 86. Bearing these principles in mind, let us look at the facts of this case. When Sylvia confessed to her husband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his selfcontrol. But, if his version is truefor the purpose of this argument we shall accept that what he has said is true it shows that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This attitude of the accused clearly indicates that he had not only regained his self-control, but, on the other hand, was planning for the future. Then he drove his wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bedroom of Ahuja and shot him dead. Between 130 p.m., when he left his house, and 4:20 p.m. when the murder took place, three hours had elapsed, and therefore there was sufficient time for him to regain his self-control, even if he had not regained it earlier. On the other hand, his conduct clearly shows that the murder was a deliberate and calculated one. Even if any conversation took place between the accused and the deceased in the manner described by the accused though we do not believe that it does not affect the question, for the accused entered the bedroom of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to S. 300 of the Indian Penal Code.” 24. On the touchstone of the law as laid down in K.M. Nanavati (supra) we are of the considered view that there was no grave and sudden provocation. As such, for these two reasons as assigned, this act cannot come within the ambit or sweep of Section 334 IPC. As such we decline to interfere with the findings of conviction under Section 324 of the IPC. As already observed that the trial court did not impose any sentence under Section 324 of the IPC but the trial court had imposed sentence of seven years rigorous imprisonment with fine for commission of offence punishable under Section 307 of the IPC but now we shall impose the sentence to complete the course of justice. The petitioner shall suffer six months rigorous imprisonment. For suffering the sentence the petitioner shall surrender within six weeks from today, otherwise the trial court shall take all coercive measures to ensure that the petitioner suffer his sentence. Needless to mention that if any period of detention the petitioner has undergone in connection with this case that shall be set off from his sentence. 25. With these observations, this appeal stands partly allowed. Send down the LCRs.