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2019 DIGILAW 1122 (GAU)

Paulush Tirkey v. State Of Assam

2019-10-01

ACHINTYA MALLA BUJOR BARUA, M.R.PATHAK

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JUDGMENT : A.M. Bujor Barua, J. Heard Mr. M.K. Das, learned Amicus Curiae appearing for the appellant. Also heard Ms. S. Jahan, learned Additional Public Prosecutor, Assam. 2. By the order dated 09.09.2019, it was accepted that notice on the informant respondent No.2 had been served. Inspite of such service, none appears. 3. Being aggrieved by the judgment and order dated 22.05.2017 of the learned Additional Sessions Judge, Golaghat in Sessions Case No. 26/2016, whereby the accused appellant was convicted of an offence under Section 302 IPC and sentenced to rigorous imprisonment (R.I) for life and a fine of Rs.2,000/- in default thereof, simple imprisonment (S.I) for 6 months, the present appeal has been preferred. 4. An ejahar dated 11.05.2016 was lodged by Andhrias Tirkey before the Officer-in-Charge of Naojan Out Post of Sarupathar Police Station, inter alia alleging that on the given date at about 12 hours a quarrel took place between his father, aged 80 years, and his younger brother Paulus Tirkey in the residence of his father and suddenly his younger brother killed his father by hitting him with a hoe. 5. In the trial, the informant Andhrias Tirkey while deposing as PW-1 stated that the incident took place around 11.00 a.m. on 11.05.2016 and at the time of the incident he was at his work place at Naojan. Upon coming to know about the incident he went to the house of the accused where he saw that the dead body was lying in the courtyard of the accused and saw a bleeding cut injury on the forehead. He also saw a hoe lying near the dead body. When he arrived at the place of occurrence, the accused was kept confined by the public and the public told him that the accused had struck the deceased to death with a hoe. Apart from a suggestion to which he replied that it is not a fact that he had falsely deposed that the public had told him that the accused had killed the deceased, no other question was put to the PW1 in cross examination. 6. Smti. Berjenia Tirkey who happens to be the wife of PW-1 in her deposition as PW-2 stated that at the time when the occurrence took place at about 12 O' Clock on 11.05.2016, she was in the field. 6. Smti. Berjenia Tirkey who happens to be the wife of PW-1 in her deposition as PW-2 stated that at the time when the occurrence took place at about 12 O' Clock on 11.05.2016, she was in the field. Upon returning home from the field she heard the deceased screaming in the house of the accused and upon getting frightened, she called the other people of the village and went to the house of the accused. She saw the deceased was lying in the courtyard with injury on his forehead and also saw a hoe, one stick and a chair in the place of occurrence. The witness stated that the accused had confessed before the public that he had killed the deceased. No other question was raised in cross examination. 7. Frendik Tirkey, who happens to be the son of PW-1 in his deposition stated that when the incident took place at 12.00 O' Clock on 11.05.2016 he was not at home and had gone out to bring back his niece from school. While he was returning home with his niece, he met his mother at the tiniali (tri-junction), whereupon she told him that a quarrel had taken place in the house of his paternal uncle, after which when he went to the house of the accused and saw that the deceased was lying in the courtyard. The witness deposed that he saw the accused standing at the place of occurrence with a hoe in his hand. He further deposed that the accused confessed before him and others that he had killed the deceased. Again in cross, apart from a suggestion that he had falsely deposed of having seen the accused with a hoe in his hand and that the accused had confessed that he had killed the deceased no other question was put. 8. Pw-4 Sri Simmon Akka who stated that he knew the accused, the informant as well as the deceased, in his deposition stated that the incident took place in the house of the deceased in the afternoon about 4 months back. When he came to his house, the wife of the informant told him that a quarrel was going on between the accused and the deceased and requested him to go there and settle the quarrel. When he came to his house, the wife of the informant told him that a quarrel was going on between the accused and the deceased and requested him to go there and settle the quarrel. When he arrived at the place of occurrence, he saw that the deceased was lying in the courtyard and the accused who was armed with a hoe was waylaying his mother. The witness deposed that thereafter he dissuaded the accused from assaulting his mother. When the accused calmed down a little, he snatched the hoe from him. PW-4 deposed that when he asked the accused as to why he had killed the deceased, the accused replied that he had struck him since the deceased had rebuked him. PW-4 also deposed that the accused informed him that he had killed the deceased as the deceased used to rebuke him whenever a quarrel broke out between the deceased and his wife. The witness stated that the accused had also confessed before the public that he had killed the deceased. Again in cross, apart from a suggestion that the witness had falsely deposed as regards the accused having told him that he had struck the deceased and that he had not told the police about what he had deposed, no other relevant question had been raised in the cross examination. The witness also stated in his deposition that the public had assembled in the place of occurrence and the village headman had also arrived only after he had arrived. 9. Although PW-5 and PW-7 who is declared to be hostile had made the depositions, but for the purpose of our adjudication, we do not find much relevance of their statements, and as such do not take the same into consideration. 10. Pw-6 who had conducted the post mortem examination stated the following injuries to have been found on the body of the deceased:- External Appearance Dead body of an old person. Thin built. Black complexion. Eyes closed. Rigor mortis present. Incised wound seen left side of head anteriorly 5 X 3 cm and bond deep & brain matter comes out through the wound. Cranium and Spinal Canal Scalp, skull, vertebrae- incised would seen left side of scalp 5 X 3 cm (anteriorly) frontal bone of head left side incised. Mambrane- Ruptured. Thin built. Black complexion. Eyes closed. Rigor mortis present. Incised wound seen left side of head anteriorly 5 X 3 cm and bond deep & brain matter comes out through the wound. Cranium and Spinal Canal Scalp, skull, vertebrae- incised would seen left side of scalp 5 X 3 cm (anteriorly) frontal bone of head left side incised. Mambrane- Ruptured. Brain and spinal cord- On cut section of brain tissue, hamematoma seen over frontal lobe of brain left side with congestion also whole brain tissue. Throax Throax- Normal. Heart-Right chamber full of dark coloured blood. Left chamber empty. Abdomen All are normal. 11. Pw-8 the Investigating Officer in his deposition stated that upon receiving the information when he reached the place of occurrence at about 3.15 pm, he saw that the dead body was lying in the courtyard of the deceased and also saw a blood stained hoe lying in the courtyard of the deceased. Thereafter, regulation statement as regards the seizure and the exhibits that were made had been stated. In cross examination, PW-8 stated that although he took the statement of the accused, but he did not make any prayer in the Court to get the confession statement of the accused recorded. He also did not send the seized hoe for the FSL nor recorded the statement of the wife of the deceased. 12. Mr. M.K. Das, learned Amicus Curiae for the appellant has raised a contention that PW-1,2 and 3 are the not eye witnesses and although they have stated that when they reached the place of occurrence they saw the dead body lying in the courtyard of the accused person and further where PW-3 stated that he saw the accused standing at the place of occurrence with a hoe in his hand but the said three witnesses are to be disbelieved as because of that inconsistency where they said that the dead body was found in the house of the accused whereas as per the other evidences, including the evidence of the I/O, the dead body was found in the house of the deceased. 13. When we look into the evidence of PW-4 and PW-7, we take note of that the dead body was found in the house of the deceased. From the said point of view, we are in agreement with Mr. M.K. Das as regards the evidence rendered by the PW-1, 2 and 3. 13. When we look into the evidence of PW-4 and PW-7, we take note of that the dead body was found in the house of the deceased. From the said point of view, we are in agreement with Mr. M.K. Das as regards the evidence rendered by the PW-1, 2 and 3. 14. As regards the evidence of PW-4, Mr. M.K. Das raises a contention that PW-1, 2 and 3 having not seen PW-4 in the place of occurrence, PW-4 also has to be disbelieved. We are unable to agree with Mr. M.K. Das, learned counsel for the reason that if PW-1, 2 and 3 are to be disbelieved for having not been present at the place of occurrence, they having not stated about the presence of PW-4 cannot be a reason to disbelieve the PW-4. 15. More so, we also take note of that PW-4 was categorical in his deposition that the public came to the place of occurrence after him and after he had taken away the hoe from the hand of the accused and after he had asked the accused as to why he had killed the deceased. The evidence of PW-4 otherwise had not been confronted by the defence in any manner nor any question was put before the I/O as regards the statement given by PW-4 before the police at the time of incident. As the evidence of PW-4 remains unconfronted and not being demolished, we take note of the evidence of PW-4. PW-4 is firstly an independent witness and he was informed by the wife of the informant that a quarrel was going on between the accused and the deceased and he was requested to go there to settle the quarrel. When he arrived at the place of occurrence which according to him took place in the house of the deceased, he saw that the deceased was lying in the courtyard and the accused armed with a hoe was waylaying his mother and after he had dissuaded the accused from assaulting his mother and found that the accused had calmed down a little, he snatched the hoe from him. From the aforesaid evidence of PW-4, it is discernible that firstly there was a quarrel between the accused and the deceased and secondly, the accused was found with a hoe in his hand in an around the place where the dead body of the deceased was also seen. Further the witness also deposed that after giving blow on the deceased, the accused was also trying to assault his mother, whereafter the hoe was taken away from him. PW-4 also stated about the extrajudicial confession being made by the accused inasmuch as when he was asked as to why he had killed the deceased the accused had replied that he had struck him because the deceased had rebuked him. Further evidence of PW-4 is that the accused also told him that he had killed the deceased as the deceased used to rebuke him whenever a quarrel broke out between the deceased and his wife. From the extrajudicial confession made by the accused before the PW-4, it is discernible that the accused had admitted having given the fatal blow to the deceased and had also stated the reason thereof that he had given the blow because the deceased used to rebuke him off and on and more particularly whenever the deceased used to have a quarrel with his wife. The aspect of there being a quarrel between the deceased and the accused is also discernible from the evidence of PW-7 although he was declared hostile subsequently. 16. We do not find any reason to disbelieve or disagree with the extrajudicial confession made by the accused before the PW-4 which again is corroborated by the evidence that the accused was seen with a hoe in his hand in the vicinity of the place where the dead body lying and further that the nature of injury also showed that the fatal injury was caused with a blunt weapon like that of hoe. But again when we take into account the circumstance under which the fatal blow was given we take note of that there was a quarrel between the deceased and the accused and the deceased used to rebuke the accused whenever the deceased and his wife had a quarrel between them. 17. But again when we take into account the circumstance under which the fatal blow was given we take note of that there was a quarrel between the deceased and the accused and the deceased used to rebuke the accused whenever the deceased and his wife had a quarrel between them. 17. Further we also find that there was no explanation from the accused appellant either in his statement under Section 313 Cr.P.C. nor any defence witness had been led by him explaining the circumstance as to why he was holding a hoe in his hand and standing within the vicinity of the deceased. 18. The aforesaid circumstance leads us to conclude that the chain of events is so complete that the only conclusion which can be arrived is that it is the accused appellant alone who had committed the offence of striking the deceased with a hoe and thereby causing injuries on his head which led to his death. But again circumstance that flows from the prosecution evidence that there was a quarrel between the deceased and the accused prior to the incident, the deceased used to rebuke the accused appellant whenever a quarrel took place between the deceased and his wife, leads us to a conclusion that the act attributed the accused comes within the purview of Exception 4 to Section 300 of the IPC, inasmuch as, there does not appear to be any premeditation where the incident took place in a sudden fight and in the heat of passion upon a sudden quarrel, the accused had given the fatal blow without having taken any undue advantage or without acting in a cruel or unusual manner. As the act of the accused comes within the purview of Exception 4 we are of the view that his act amounts to a culpable homicide not amounting to murder. But again when we look in the manner in which the injury was caused i.e. with a heavy blunt weapon in the head portion which is accepted to be a vital part, we are of the view that the act of the accused amounts to an act being done with the intention of causing death. In this respect, we refer to the pronouncement of the Supreme Court in State of State of Madhya Pradesh -vs-. In this respect, we refer to the pronouncement of the Supreme Court in State of State of Madhya Pradesh -vs-. Kalicharan & Others, (2019) 6 SCC 809 , wherein, the Supreme Court was of the view that even when a single blow is given in a vital part with a heavy blunt weapon, the same would indicate that there was an intention on the part of the accused to cause death. 19. Accordingly, we modify the conviction of the accused appellant and convict him under Section 304 Part-I IPC. As regards the sentence it stands modified to a sentence of R.I. for 8 years by retaining the fine of Rs.2,000/- in default thereof a further S.I. of 6 months as awarded by the learned Additional Sessions Judge, Golaghat in the judgment dated 22.05.2017. 20. The appeal stands allowed to the extent as indicated above. 21. Before parting with the record, we appreciate the valuable service rendered by Mr. M.K. Das, learned Amicus Curiae. Accordingly, it is directed that an amount of Rs.7,500/- as legal fees be paid to him by the High Court Legal Service Committee upon production of a copy of his judgment and order. 22. A copy of this order be provided to the accused appellant through the Superintendent of the concerned jail. Send back the LCR.