Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 42 (GAU)

Prabhat Gogoi v. State of Assam

2017-01-09

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Prabhat Gogoi has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. He has also been convicted under Section 326 of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years and fine of Rs.1,000/-, with default stipulation. The jail sentences have been ordered to run concurrently. 2. The victims of the incident were Phanindra Gogoi, the uncle and Bihuti Gogoi, aunt of the appellant. Phanindra was grievously injured in the incident whereas Bihuti died. She was 35 years at the time of her death. 3. According to the prosecution case, on 29.8.2001 around 2.30 p.m., the appellant hacked his paternal uncle Phanindra Gogoi and his aunt Bihuti Gogoi, with a mesidaoin their house near Mahalaxmi Tea garden, Sivasagar. All of them including the appellant used to reside in the same house. Phanindra sustained grievous injuries on his head whereas Bihuti died instantaneously. After so assaulting them, the appellant approached towards the road carrying the dao and on his way met his father Trailokya Gogoi (PW-1). He then narrated Trailokya about the incident and handed over him the dao. Trailokya being fumbled went to his house and found his brother in injured state and took him to Dibrugarh for treatment. He also found the dead body of Bihuti lying nearby. Then he made the Ejahar (Exhibit-1) against the appellant before the police station Borhat of Sivasagar District. 4. In the meantime the appellant surrendered before the police station and also made confessional statement before Mazed Ali (PW-13), the then Sub-Divisional Judicial Magistrate, Charaideo, Sonari. Before that, Sanjib Gogoi (PW-12) investigated the case and also questioned the witnesses, drew sketch map etc. He sent Phanindra to Assam Medical College, Dibrugarh for treatment and arrested the appellant. He confessed his guilt before him too. 5. The dao was seized by police in the presence of Betharam Changmai(PW-9) and inquest was done on the dead body of Bihuti in presence of Umesh Borgohain(PW-6) and Durna Jadhipashia (PW-7). 6. Dr. Biswajit Dutta (PW-10) conducted post-mortem examination on Bihuti and found incised wound about 8”x8” on the right neck cutting the tracheal , larynx, esophagus, hyoid bone, grazing up to the vertebrae and cutting the intervening muscles and carotid artery and jugular veins at the neck. 6. Dr. Biswajit Dutta (PW-10) conducted post-mortem examination on Bihuti and found incised wound about 8”x8” on the right neck cutting the tracheal , larynx, esophagus, hyoid bone, grazing up to the vertebrae and cutting the intervening muscles and carotid artery and jugular veins at the neck. In his post mortem examination report Exhibit-4, he opined that the cause of death was due to shock and hemorrhage as a result of cut injuries to carotid vessel and jugular veins which were ante-mortem in nature. 7. Dr. Diganta Borgohain (PW-11) who treated Phanindra Gogoi found incised wounds over right side of neck upto mastoid process of size 15cm x 5 cm x muscle deep, left elbow medially of size 5cm x 1 cm x skin deep and another incised wound of size 4cmx ½ cmx skin deep. He also found one fracture of right mastoid bone and as per city scan report the brain communicated fracture right mastoid bone with collection within mastoid air cells. As per his injury report Exhibit-5 the injuries were fresh, caused by sharp cutting weapon and the injury no. 1 was grievous in nature. 8. On completion of investigation, police submitted charge-sheet against the appellant. 9. During trial, the appellant abjured his guilt and pleaded that he was suffering from mental disorder. It was further the stand of the appellant that Bihuti and his uncle had some illicit relationship and hence out of anger, he assaulted them with the dao. 10. But the trial court relying upon the evidence adduced by the prosecution, convicted and sentenced the appellant as aforesaid. 11. It is argued on behalf of the appellant that since the appellant was suffering from mental disorder and was undergoing treatment the trial court committed an illegality in convicting him under Section 302 of the Indian Penal Code. 12. In the present case, the injured bodies of Phanindra and Bihuti were found. The appellant voluntarily made confession before Mazed Ali incriminating himself and the magistrate recorded his statement giving him sufficient time for reflection and after giving statutory warnings. Therefore, the confession is admissible in evidence. During his statement u/s 313 Cr.P.C also he admitted making such a confession. His confessional statement is reproduced herein below for ready reference:- “Phanindra Gogoi is my uncle and Smti Bihuti Gogoi was my aunt. They used to disturb me without any reason. Therefore, the confession is admissible in evidence. During his statement u/s 313 Cr.P.C also he admitted making such a confession. His confessional statement is reproduced herein below for ready reference:- “Phanindra Gogoi is my uncle and Smti Bihuti Gogoi was my aunt. They used to disturb me without any reason. Around 2 p.m. yesterday, I was working in the enclosed yard. Therefore while coming home, I came face to face with them on the way. I had a mesidao in my hand. Then I attacked them. At first, I tried to cut my uncle. After I had dealt two blows on him, he tried to escape. Then aunt, too, tried to escape. Then I dealt several dao blows on aunt thereby felling her down. Thereafter, taking the dao, when I was coming to the P.S., I met my father and handed over the dao to him. Aunt died. Thereafter, I went to Borhat Police Station and detained the incident to police. Now, I have realized that I have done wrong. So, I have stated the truth.” 13. The confessional statement is supported by the oral evidence of Trailkyo (father of appellant) who deposed that the appellant met him on his way to the police station after committing the offence and handed over his dao to him after narrating the incident. Phanindra (PW-2) who was one of the victims also deposed that the appellant assaulted him and Bihuti with a dao. Akan Gogoi (PW-3) who was a neighbour of Phanindra also deposed that he saw Phanindra in injured condition and staggering. He then helped him to reach his house and took him for treatment with Trailokya. They took him in the vehicle of Bhaba Kanti Borgohain(PW-4) and Budheswar Phukan (PW-5) also accompanied them. Therefore, it is proved beyond reasonable doubt that the appellant alone was the perpetrator of crime. The weapon of offence was also seized which was a sharp cutting weapon and the same is supported by medical evidence. 14. Therefore, we are of the considered opinion that the conviction of the appellant is proper. Although, Phanindra, Trailokya, Bhaba Kanti Borgohain and Budheswar Phukan have deposed that the appellant had been suffering from some mental disorder and was under treatment and Dr. 14. Therefore, we are of the considered opinion that the conviction of the appellant is proper. Although, Phanindra, Trailokya, Bhaba Kanti Borgohain and Budheswar Phukan have deposed that the appellant had been suffering from some mental disorder and was under treatment and Dr. Sumitra Ghosh (CW-1) corroborated their evidence and deposed that he examined him on 28/4/2005 and directed him to be hospitalized and again on 26/12/2005, the same would no way go to prove that he was suffering from mental disorder on the date of occurrence i.e. on 29.8.2001 to get protection under section 84 of Indian Penal Code. It is now well settled by the Supreme Court that one who seeks exoneration from liability of an act under Section 84 of the Indian Penal Code, must prove legal insanity and not medical insanity. In Surendra Mishra -vs- State of Jharkhand, (2011) 11 SCC 495 , the Supreme Court has held that every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The Supreme Court has also held that the mere fact that the accused is conceited, odd, irascible and his brain is not quite alright, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Indian Penal Code. In the case at hand, except for bald statement that the appellant was suffering from mental disorder on the date of occurrence, there is absolutely no cogent and reliable evidence to establish that at the time of commission of offence, he did not know the nature of his act or that it was either wrong or contrary to law. His plea apparently does not come within the exception contemplated under Section 84 of the Indian Penal Code. 15. We, therefore, having regard to the above find ourselves in complete agreement with the finding of the trial court that appellant alone was the perpetrator of the crime. 16. For these reasons, we find no merit in this appeal and it is accordingly dismissed.