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2017 DIGILAW 176 (GAU)

Sunu Dutta v. State of Assam

2017-02-09

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Sunu Dutta has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. 2. The victim of incident was Pabitra, aged about 35 years. 3. Admitted facts are these. Pabitra was Driver of Circle Inspector and posted in the Sonari Police Station. He lived with his wife Hiramoni Dutta (PW-3) and daughter Rikhi Mili (PW-9) at village Thukubil Satra falling within the jurisdiction of the same Police Station. He was also step-father of Pinki Numgrum (PW-10) born to Hiramoni Dutta from her first husband. Hiramoni Dutta is sister of Tankeswar Dutta (PW-5) and appellant is their nephew. The appellant is thus cousin of Pinki Numgrum. He and Tankeswar Dutta also lived in the same village in their respective houses, but at some distance from the house of Pabitra. Pinki Numgrum however had shifted to the house of appellant about 10 days prior to the date of incident. 4. According to the prosecution case, on 6.6.2007, at about 10 p.m. Pabitra after taking meals in his house, went to the house of appellant and there, multiple injuries were caused to him by the appellant with a dao due to which he died. The appellant then threw the dao in a nearby river and surrendered at Police Station, Sonari where Hiramoni Dutta also made ejahar exhibit 1 against him. Investigating Officer – Md. Abidur Rahman (PW-12) prepared sketch map exhibit 4 of the place of occurrence as well as inquest report exhibit 3 of the dead body. He also arrested the appellant and referred the dead body of Pabitra for post mortem examination. 5. Dr. Prasanta Protim Sarma (PW-11) conducted the post mortem examination on the dead body. He found five different sized cut marks on the face and a deep long cut mark on the chest wall exposing left lung and heart region. He also found long cut mark on the epigastric region and another cut mark on the anterior aspect of the right leg below the knee. The doctor in his post mortem examination report exhibit-6, opined that Pabitra died due to injuries which were ante mortem in nature and caused by sharp cutting weapon like dao. 6. Investigating Officer Md. He also found long cut mark on the epigastric region and another cut mark on the anterior aspect of the right leg below the knee. The doctor in his post mortem examination report exhibit-6, opined that Pabitra died due to injuries which were ante mortem in nature and caused by sharp cutting weapon like dao. 6. Investigating Officer Md. Abidur Rahman after recording the statements of witnesses and completing the investigation, charge-sheeted the appellant for an offence under Section 302 of the Indian Penal Code. 7. The trial court, essentially, relying upon the evidence of witnesses – Md. Biju Hussain (PW-1), Bimal Basumatary (PW-2), Hiramoni Dutta, Tankeswar Dutta and Md. Abidur Rahman convicted and sentenced the appellant, as aforesaid. The trial court also relied upon the post mortem examination report exhibit 6 prepared by Dr. Prasanta Protim Sarma. 8. Md. Biju Hussain and Bimal Basumatary have testified that they were present at the police station when the appellant suddenly came and confessed to Md. Abidur Rahman that he had cut Pabitra with a dao. According to these witnesses, Md. Abidur Rahman then arrested the appellant. Although the Trial Court has relied upon such confession of the appellant, we are of the considered view that it was inadmissible in view of Section 25 of the Indian Evidence Act which clearly says that no confession made to a police officer shall be proved against a person accused of any offence. The trial court therefore should not have accepted the confession against the appellant. 9. Hiramoni Dutta has been examined as an eye witness. She has testified that on hearing commotion, she ran towards the place of occurrence and saw the appellant hacking Pabitra with a dao. But, Hiramoni in her police case diary statement did not claim to have seen the incident, particularly hacking of Pabitra. It is thus difficult to believe that she really witnessed the hacking of Pabitra. Rikhi Mili is daughter of Pabitra and Hiramoni Dutta. According to her evidence, she too had rushed to the place of occurrence along with Hiramoni Dutta and saw the appellant leaving the place of occurrence with a dao in his hand. Therefore, from her evidence also, it is clear that neither she nor Hiramoni Dutta actually saw the appellant causing injuries to Pabitra. 10. As mentioned above, Tankeswar Dutta is brother of Hiramoni Dutta and uncle of appellant. Therefore, from her evidence also, it is clear that neither she nor Hiramoni Dutta actually saw the appellant causing injuries to Pabitra. 10. As mentioned above, Tankeswar Dutta is brother of Hiramoni Dutta and uncle of appellant. He has testified that on hearing commotion, he came out from his house and saw both appellant and Pabitra quarreling with each other. According to his evidence, he even asked them not to quarrel but they did not listen. This witness has then testified that after some time quarrel between the two aggravated and they started assaulting each other with lathi whereafter, the appellant taking a dao dealt one blow with it on the neck of Pabitra. But in the cross examination, Tankeswar Dutta denied having seen who had killed Pabitra. We are of the view that this denial by Tankeswar Dutta was because he happens to be an uncle of the appellant and wanted to save him from being convicted though he really saw the appellant hacking Pabitra. 11. Pinki Numgrum is cousin of the appellant and step-daughter of Pabitra. According to her evidence, she was staying in the house of appellant about 10 days prior to the date of incident. She has testified that the incident took place in front of the house of appellant pursuant to sudden quarrel between the appellant and Pabitra. She says that Pabitra tried to beat her but was saved due to intervention by the appellant. 12. From the evidence of Tankeswar Dutta and Pinki Numgrum, it is established beyond reasonable doubt by the prosecution that appellant caused multiple injuries to Pabitra with a dao in front of his house. The learned counsel for the appellant also having regard to the evidence of Tankeswar and Pinki Numgrum has not assailed the prosecution story that appellant caused multiple injuries to Pabitra with a dao which is even otherwise fully proved. We accordingly confirm the finding of the Trial Court that appellant alone was the perpetrator of the crime. 13. The learned counsel for the appellant has, however, argued that even accepting the prosecution version in totality, the offence against the appellant would not be under Section 302 of the Indian Penal Code, but under Part-I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. 14. 13. The learned counsel for the appellant has, however, argued that even accepting the prosecution version in totality, the offence against the appellant would not be under Section 302 of the Indian Penal Code, but under Part-I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. 14. In the case of Muthu vs. State of AIR 2008 SC 1 , it has been held that when in the heat of the moment or in a fit of anger a person does an act without premeditation that person must also be punished but his punishment should be lesser than that of premeditated offences. The Supreme Court has observed that it is for this reason that Exceptions 1 and 4 have been inserted in Section 300 of the Indian Penal Code. Exception 4 to Section 300 of the Indian Penal Code clearly provides that culpable homicide is not murder if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 15. In the case at hand, the incident took place in front of the house of the appellant. According to prosecution case also, Pabitra had went to the house of the appellant to meet him but there a quarrel took place between the two. It appears that Pabitra was not happy with the staying of his step-daughter Pinki Numgrum in the house of appellant. Pabitra had even tried to beat her. It has come in the evidence of Rikhi Mili that her father (Pabitra) used to consume liquor and often picked up quarrel with villagers due to which he was disliked by them. The incident apparently took place on a quarrel without pre-meditation and the appellant in the heat of passion dealt multiple blows to Pabitra with a dao, which resulted into his death. Having regard to the facts and circumstances of the case, we are of the considered view that the act committed by the appellant would fall under Section 304 Part I of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 16. Having regard to the facts and circumstances of the case, we are of the considered view that the act committed by the appellant would fall under Section 304 Part I of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 16. Consequently, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment imposed to him thereunder and instead, convict him under Section 304 Part I of the Indian Penal Code and impose a sentence of 9 years rigorous imprisonment. The sentence of fine is however affirmed. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. 17. With the above modification, the appeal is partly allowed.