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2018 DIGILAW 1755 (GAU)

Dharani Saikia v. State of Assam

2018-12-18

M.R.PATHAK, MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : MIR ALFAZ ALI, J. We have heard learned Amicus Curiae, Dr. B. N. Gogoi and learned Addl. Public Prosecutor Mr. H. Sarma, who have also taken us through the evidence and materials brought on record. 2. This jail appeal is directed against the judgment and order dated 27-11-2015, passed by learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No.35/2012. By the said judgment, learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 2,000/-with default stipulation. 3. The sad story of this case is that an old man of around 80 years lost his life in the hand of his son. As per prosecution case, on 12-12-2002, there was some altercation between the appellant and the deceased, who happened to be his foster father. The wife of the deceased tried to intervene, but could not succeed and on the next morning, the dead body of the deceased was found with injury, in the well. 4. PW 1, who happened to be the VDP Secretary, having come to know about the occurrence lodged the FIR(Ext. 1), on the basis of which, police registered Thelamara P.S. Case No. 46/2002 under Sections 302/326 IPC and commenced investigation. During investigation, the dead body was recovered from the well, in the campus of the accused/victim, inquest report was prepared by the investigating officer and post mortem examination was conducted by Dr. Kulendra Nath Deka (PW 2). 5. Dr. Kulendra Nath Deka, who conducted the post mortem examination on the body of the victim, found the following injuries: “Injuries 1. Incised wound over right temporal part of skull 2” x 1” x 1” in size. Bone deep. 2. Incised wound over the right parietal lobe. 4”x 2” x 1” in size. Bone deep. 3. Lacerated wound over the left elbow measuring 2” x 1” x 1”. Blood clot seen. 4. Abrasion present on face left side and arms left side. There is fracture of right parietal and temporal bone. Right temporal and right parietal lobes are ruptured.” In the opinion of the doctor, death was due to head injury sustained by the victim. It was also opined by the doctor that the injury found on the body of the victim could not be self inflicted or by accident, making a clear indication that the death was homicidal. 6. Right temporal and right parietal lobes are ruptured.” In the opinion of the doctor, death was due to head injury sustained by the victim. It was also opined by the doctor that the injury found on the body of the victim could not be self inflicted or by accident, making a clear indication that the death was homicidal. 6. On conclusion of investigation, police laid charge-sheet against the present appellant u/s 302 IPC and eventually he stood trial. 7. In course of trial, charge was framed against the accused under Section 302 IPC, to which, he pleaded not guilty. Twelve witnesses were examined by the prosecution to establish the charge. On appreciation of evidence, learned trial court convicted the appellant u/s 302 IPC and awarded sentence as indicated above. 8. PW 1, who lodged the FIR, was not an eye witness. According to PW 1, he came to know from Jonaki Keot (PW 3), that there was quarrel and fight between the victim and the accused and the accused assaulted the victim. PW 3, wife of the victim and foster mother of the appellant, deposed, that there was altercation between the accused and her husband, but she was not aware about the reason for such altercation. She further deposed that as a result of such assault, her husband died. From the cross-examination of this witness it appears, that she did not have the opportunity to see the actual assault, inasmuch as, before the assault took place, she left the house. PW 4 & PW 5 came later and they also did not have any personal knowledge about the occurrence. PW 4 was, however, declared hostile. PW 6 also came later and stated to have noticed injuries on the body of the victim. According to him, he was witness to the inquest report. According to PW 7, who happens to be the witness to the seizure list, police seized a stick and a hurricane lamp vide Ext. -3, on being shown by the accused. But during cross-examination, he stated, that he was not sure whether the stick, which was shown to him during trial, was the stick seized vide Ext. 3. PW 8 was a hearsay witness. PW 9 testified, that on the night of occurrence, the wife of the deceased came to his house (PW 9) and stayed there. But during cross-examination, he stated, that he was not sure whether the stick, which was shown to him during trial, was the stick seized vide Ext. 3. PW 8 was a hearsay witness. PW 9 testified, that on the night of occurrence, the wife of the deceased came to his house (PW 9) and stayed there. According to him, altercation took place in the house of the victim on the night of occurrence. On the next morning, when PW 3 returned home, she came to know that her husband was killed. 9. PW 10 & PW 11 also came later and did not have any personal knowledge about the occurrence. PW 12 was the investigating officer, who submitted charge-sheet. The investigating officer, who conducted the investigation expired and he could not be examined. On conclusion of prosecution evidence when the accused was examined u/s 313 Cr.P.C., in response to the question, as to what he had to say about the occurrence, he replied as under : “I was at home on the day of occurrence. In the evening a quarrel took place between my father’s elder brother and the wife of my father’s elder brother. My “Borma” (wife of father’s elder brother) went out of home. I sent my wife for searching............. That night, my wife did not return home. Later I fell asleep. I learnt that my son had also got hurt in the neck. Waking up in the morning on the following day, I saw my father’s elder brother Jinaram lying dead in well. Later police came and took me under arrest. I am not involved in the incident.” 10. Evidently there was no direct evidence of any one having seen the accused assaulting the victim. However, a dispassionate scrutiny of the prosecution evidence would show, that some altercation took place in the evening, between the accused and the victim, and having seen the altercation and quarrel between the victim and the accused, the wife of the deceased (PW 3) left the home and on the next morning, the body of the victim was found in the well with injuries. It is also evident from the oral testimony of the witnesses that on the relevant night, the appellant, the victim and the small child of the appellant were in the house. It is also evident from the oral testimony of the witnesses that on the relevant night, the appellant, the victim and the small child of the appellant were in the house. It was also admitted by the appellant in his examination u/s 313 Cr.P.C. that there was quarrel in the evening between the victim and his wife. Thereafter, the wife of the victim left the house and he (appellant) sent his wife in search of the wife of the victim, who also did not return. Therefore, admittedly the victim and the appellant with his child remained in the house. According to appellant, when he woke up in the next morning, he came to know, that the dead body of his foster father was lying in the well. The statement of the appellant u/s 313 CrPC, that on the fateful night there was none in the house, except he and his foster father (the victim) also gets support from the oral testimony of PW 3. According to her, after altercation, she left the accused, leaving the victim and appellant in the house. 11. Though the statement of the accused recorded u/s 313 CrPC is not evidence strictosenso, in view of subsection (4) of Section 313 Cr.P.C., such statement can be used against the accused, along with other evidence and this proposition of law is well settled. Thus the oral testimony of PW 3 and the statement of the accused recorded u/s 313 Cr.P.C. clearly established beyond reasonable doubt, that except the accused, there was none, with the victim in the house on the fateful night, when the victim was brutally beaten to death and his body was found in the well, next morning. In the above circumstances, establishing that fact that the appellant alone was with the victim in the house on the fateful night the accused/appellant obviously owe an explanation, as to how the death of the victim was caused. 12. It is no doubt true that the accused has a right to keep silence. But when there are incriminating circumstances proved by the prosecution evidence, which, if not explained, tend to attribute culpability to the accused and the accused remained silent by exercising his right of silence or tried to give a false explanation exculpating him, the court cannot be blamed for taking adverse presumption to attribute culpability to the accused. But when there are incriminating circumstances proved by the prosecution evidence, which, if not explained, tend to attribute culpability to the accused and the accused remained silent by exercising his right of silence or tried to give a false explanation exculpating him, the court cannot be blamed for taking adverse presumption to attribute culpability to the accused. This is what the situation in the instant case. Though there was no direct evidence of anyone having seen the accused assaulting the victim, the evidence of PW 3 & PW 9, coupled with the circumstances that, there was none with the victim in the house, except the appellant, when the occurrence took place on the fateful night, the accused cannot escape from the culpability unless he explains how the death was caused, inasmuch as, Section 106 of the Evidence Act put a reverse burden on the appellant in the above circumstances. 13. In the above facts and circumstances, the finding of the learned trial court, that the accused/appellant was the perpetrator of the crime, cannot be faulted. Therefore, we concur with the finding of the learned trial court, that it was the accused, who was the perpetrator of the act, causing death of the victim. 14. It is revealed from the prosecution evidence that there was altercation and quarrel between the victim and the accused and in course of such quarrel, the injuries were inflicted to the victim. Therefore, when the injuries were inflicted in course of sudden quarrel in the heat of passion, it is difficult to hold, that there was premeditation on the part of the appellant to cause death of the victim being his foster father. When there was no premeditation on the part of the accused/appellant and in all probabilities the injuries were inflicted in course of altercation and quarrel, at the heat of passion, the act of the appellant comes within the sweep of Exception IV to Section 300 IPC. Therefore, the accused/appellant could not be held liable for offence u/s 302 IPC for committing murder. Rather, the offence committed by the appellant shall be culpable homicide not amounting to murder and as such, the conviction and sentence of the appellant u/s 302 IPC, in our considered view cannot be sustained. 15. Therefore, the accused/appellant could not be held liable for offence u/s 302 IPC for committing murder. Rather, the offence committed by the appellant shall be culpable homicide not amounting to murder and as such, the conviction and sentence of the appellant u/s 302 IPC, in our considered view cannot be sustained. 15. The medical evidence and the nature of injuries and also the fact, that the dead body was thrown into the well, speaks loud and clear, that the accused inflicted the injuries to the victim with the intention to cause death, though there might not be pre-meditation. When death was caused as a result of the injuries inflicted by the accused/appellant with the intention to cause death, in course of sudden quarrel and at the heat of passion, he shall be liable for commission of offence u/s 304 Part-I IPC. Accordingly, we set aside the conviction and sentence of the appellant u/s 302 IPC, instead, we convict him u/s 304 Pt-I of the Indian Penal Code and sentence him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 5,000/-. In default of payment of fine, he shall undergo further simple imprisonment for three months. The period, which the accused has already undergone in confinement during investigation and trial shall stand set off. 16. Consequently, the appeal stands partly allowed. 17. Appreciating the assistance rendered by Dr. B.N. Gogoi, learned Amicus Curiae, we hereby provide that he will be entitled to fees as Legal Aid Counsel, as per the norms fixed by the Legal Services Authority Regulation. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Dr. B. N. Gogoi. 18. Send back the LCR along with a copy of this judgment. 19. A copy of judgment shall also be sent to the appellant through the Superintendent of the concerned jail.