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2019 DIGILAW 1151 (GAU)

Ananda Chetia v. State of Assam

2019-10-24

MANISH CHOUDHURY, MIR ALFAZ ALI

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. RP Sharma, learned senior counsel for the appellant and Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam. 2. This criminal appeal is directed against the judgment and order passed by the learned Sessions Judge, Dhemaji in Sessions Case No. 71(DH)/2006, whereby the learned Sessions Judge convicted the appellant under section 304 (Part-I) of the Indian Penal Code (IPC) and sentenced him to undergo Rigorous Imprisonment for life and fine of Rs. 1,000/- with default stipulation. 3. The prosecution case as unfolded in the FIR was that on 16.03.2004, at about 5.30 pm, when the victim Sushil Chetia was coming from Dhemaji, he met Runjun Chetia @ Saraswati, (Pw-4) on the way. While the victim Sushil was chatting with said Runjun Chetia, the appellant Ananda Chetia inflicted injury to him by shooting with a pistol. Immediately the injured Sushil Chetia was shifted to hospital, however, he succumbed to the injuries. A formal FIR (exhibit-1) was lodged by the sister of the victim Rohini Chetia, on the basis of which police registered Dhemaji PS Case No. 48/2004 under section 341/302 IPC and commenced investigation. In course of investigation police prepared the inquest report and got the statement of some of the witnesses recorded under section 164 Cr.P.C., send the body for post-mortem examination and Doctor Achit Kr Boruah (PW-17) conducted post-mortem examination. On conclusion of investigation charge-sheet was laid against the present appellant under section 302 IPC. 4. In course of trial charge was framed under section 302 IPC against the present appellant, which was abjured by him. In order to bring home the charge, the prosecution examined as many as 24 (twenty four) witnesses. After completion of prosecution evidence, accused/appellant was examined under section 313 Cr.P.C. During such examination the appellant took the plea of innocence. On appreciation of evidence adduced by both the sides, learned trial Judge convicted the appellant under section 304 (Part-I) IPC and awarded sentence as indicated above. Aggrieved, the appellant has preferred the instant appeal. 5. Mr. R.P. Sharmah, learned senior counsel strenuously arguing for acquittal of the appellant contends, that there was neither any intention nor any pre-meditation to cause the death of the victim and the appellant inflicted the injury to the victim in course of sudden fight and provocation. Aggrieved, the appellant has preferred the instant appeal. 5. Mr. R.P. Sharmah, learned senior counsel strenuously arguing for acquittal of the appellant contends, that there was neither any intention nor any pre-meditation to cause the death of the victim and the appellant inflicted the injury to the victim in course of sudden fight and provocation. Learned counsel further contends that the victim tried to outrage the modesty of the appellant's wife and forced her to accompany him, whereupon, quarrel started and in order to save his wife, when the appellant resisted the victim, scuffle ensued between the victim and the accused/appellant and therefore, the appellant was also entitled to the right of private defence, inasmuch as, the appellant only retaliated the attack by the victim in exercise of right of private defence. 6. Learned Addl. PP contends, that having regard to the weapon used and the nature of injury inflicted to the victim, it cannot be said that the appellant did not have the intention to cause death and therefore he shall not be entitled to the benefit of General Exception under section 96 of the IPC. 7. Having given due consideration to the submission made by the learned counsel for the parties, we feel it apposite to go through the evidence brought on record before addressing the submission of the learned counsels. 8. On our assessment of the evidence and the materials on record, we find that Pw-4, the wife of the appellant was the sole eye witness of the case. Pw-4 testified that at the time of the occurrence, she was proceeding to her parental home along with the appellant. On their arrival at the village Nagakhelia, the appellant went to a nearby shop for purchasing cigarette and she was proceeding slowly. At that point of time the deceased arrived there by riding his bicycle and got down near her. The deceased asked her as to where was she going. As she replied that she was going to her parents house, the deceased proposed her to get on in his bicycle which was refused by her, whereupon, the victim Sushil caught hold of her by hand and tried to put her on the bicycle forcibly. By that time, the appellant came there and caught hold of Sushil and gave him repeated fist blows and also shot him by his pistol causing injuries. By that time, the appellant came there and caught hold of Sushil and gave him repeated fist blows and also shot him by his pistol causing injuries. After inflicting the injury the appellant had fled away from the place of occurrence. Thereafter, she came to Dhemaji and met the appellant in his rented house, wherefrom the police arrested the appellant and also seized the pistol from the possession of the appellant. She also stated that she knew the victim from the childhood. During cross-examination, it was elicited that the appellant was her husband at the relevant time and subsequently she mentioned another person. The statement of this witness was also recorded under section 164 Cr.P.C., which has been proved as exhibit-4. During her statement recorded under Section 164 Cr.P.C., by the Magistrate, she (Pw-4) stated that when she refused the offer of the victim Sushil Chetia to get on his bicycle, Sushil caught by her blouse and asked her to get on his bicycle, whereupon, her husband, the appellant, who was following her, challenged the victim and the victim "hit him by his hand and engaged in a scuffle with the appellant. In course of such scuffle, the victim fell in a drain by the side of the road. The victim again brought a stick from the nearby fence and hit the appellant. She (Pw-4) raised alarm and suddenly she heard the sound of gunshot and scream of Sushil Chetia saying 'morilumorilu '(dying dying'). Having received the injury, the victim crawled to a nearby house and the accused had fled away from the place of occurrence. The Pw-8, Judicial Magistrate Shri Rockta Lal Das, who recorded the statement of Pw-4 also proved the statement of Pw-4. Pw-8 in his deposition clearly stated that the statement of the victim was recorded by him and duly proved the statement of Pw-4 recorded under section 164 Cr.P.C., as exhibit-4. 9. Pw-1 Rohini Chetia testified that having come to know about the occurrence she met the victim Sushil Chetia in the hospital and noticed injury on his right shoulder and back. On being asked by her, Sushil said, that Anand Chetia had shot at him, while he was coming from Dhemaji with Saraswati (Pw-4). 10. 9. Pw-1 Rohini Chetia testified that having come to know about the occurrence she met the victim Sushil Chetia in the hospital and noticed injury on his right shoulder and back. On being asked by her, Sushil said, that Anand Chetia had shot at him, while he was coming from Dhemaji with Saraswati (Pw-4). 10. Pw-2 Bhupen Gogoi stated, that while he was coming from Dhemaji and arrived at the place of occurrence, he found Sushil lying there with injuries and was asking for help. On being asked as to who caused the injury, Sushil told that Ananda Chetia inflicted the injury by firing with a gun. In the meantime, police also arrived at the place of occurrence and shifted the injured Sushil to hospital. The statement of this witness was also recorded under section 164 Cr.P.C., which was proved as exhibit-3. Deposition of this witness is found fully consistent with his previous statement recorded under section 164 Cr.P.C. 11. Pw-3 Rimjim Saikia deposed that while she was in her house she heard the sound of gunshot and also someone screaming saying 'save me' 'save me'. Immediately she put on the light and while peeping through the window, she noticed that the victim was proceeding to her rented house but could not enter into the house and fell down on the gate. She came near the victim and in the meantime other people also assembled there. She provided water to the victim. She further stated that on being asked by someone present amongst the people gathered there, the injured Sushil said that he was shot by one Chetia, who is a police personal. 12. Pw-11 also stated that he has seen the victim lying with a gunshot injury on the side of the road. He asked the people gathered there to take the victim to hospital and he himself went to inform the members of Sushil's family. Thereafter, taking along Sushil's father, he came to the hospital, where, on being asked by him Sushil told, that while he was coming from Dhemaji, he met a girl named Saraswati who requested him to take her on his bicycle, as it was dark in the meantime. While he was talking to her (Pw-4), a person appeared there and punched him. While he protested, a quarrel ensued between them and the said person shot him with a pistol, which he was carrying. While he was talking to her (Pw-4), a person appeared there and punched him. While he protested, a quarrel ensued between them and the said person shot him with a pistol, which he was carrying. He, further deposed that Sushil, could not tell the name of the assailant, but stated that the person who shot him was the PSO of District & Sessions Judge, Dhemaji. The oral testimonies of the Pw-1, Pw-2, Pw-3 and Pw-11 regarding oral dying declaration remained unblemished, inasmuch as, no material could be brought on record to create any dent in the testimony of the three four witnesses, during cross-examination. 13. Pw-5 was the witness to the seizure list (exhibit-5) by which the police seized the empty cartridge from the place of occurrence. Pw-6, Pw-7 & Pw-14 were also the witness to the seizure list (exhibit-6), whereby 34 live bullets of pistol were sized from the accused/appellant. These witnesses also proved the material exhibit-2 being 9 mm bore pistol with Unit No. 45, Body No. 16247369. Pw-13 Sri Bhabajyoti Moran, who is a constable in the Assam Police stated that he was serving as "Arms Cot" Armour in Dhemaji police reserve. According to him, Havilder PSO Ananda Chetiya (appellant) was issued one pistol with Butt No. 45, Body No. 16242369 along with a magazine containing 35 bullets. He also proved the relevant arms and ammunitions register, volume - 6. Pw-15 Lakhi Dutta is also a witness to the seizure list (exhibit-6 & exhibit-8) by which police seized bullets and the arms and ammunitions registered respectively. Pw-20 was also the witness to the seizure list (exhibit-5). 14. Pw-16 stated that while he was in his rented house in the evening, he heard shouting whereupon he came out of the room and heard the daughter of the landlord saying that someone had been shot. Immediately he came forward to the gate with a torch and found that a boy was lying in a pool of blood. Immediately he informed the police and police arrived there and seized the blood stained jacket vide exhibit-9. He also proved the said jacket as material exhibit-5. 15. Pw-22 was the Scientific officer who examined the arms and ammunitions used in the instant case, stated that he found one 9mm pistol bearing No. 16247369, one fired pistol cartridge cage, thirty four numbers of unused live pistol cartridge and examined the same. He also proved the said jacket as material exhibit-5. 15. Pw-22 was the Scientific officer who examined the arms and ammunitions used in the instant case, stated that he found one 9mm pistol bearing No. 16247369, one fired pistol cartridge cage, thirty four numbers of unused live pistol cartridge and examined the same. According to Pw-22, the used cartridge examined by him was fired from the pistol being No. 16247369, which was issued to the appellant. 16. Pw-17 was the doctor, who conducted the post-mortem examination on the body of the victim and found the following injuries: 1. A circular perforating injury of 1 cm diameter leading up to middle lobe of the left lung is detected on left shoulder of its front side. The margin of the wound was invested and mark of tattooing is detected around the margin. The injury is ante mortem. 2. A circular perforating injury of about slightly less than 1 cm diameter in size leading up to middle lobe of left lung is detected on the back of the chest about 8 inch below the noots of the neck and 1/2 inch towards the right side from the mid line of the margin of the injury is everted. The injury is ante mortem. 3. Middle lobe of left lung is found perforated through and through and found collapsed. Whole chest cavity was found with full profuse blood. The cranial cavity and its coverings, the spinal cord, the abdominal wall its cavity and its contents, the perineum and sex organ all are found normal. On dissection of abdominal wall-healthy, Peritoneum - healthy, mouth, pharynx, oesophagus, healthy; stomach and its contents half digested food material, intestine contained semi solid food material and large intestine contains fual matters. In the opinion of the doctor, the cause of death was haemorrhage and shock following gunshot in the vital organ. The doctor was also not cross-examined and the testimony remained as it is. During cross-examination it was confirmed that injury found on the body of the victim was fire arm injury from a short distance. 17. The appellant examined himself as Dw-1 in support of his defence and stated that he was serving as PSO to the District & Sessions Judge, Dhemaji and a pistol with 35 round of bullets was issued to him. 17. The appellant examined himself as Dw-1 in support of his defence and stated that he was serving as PSO to the District & Sessions Judge, Dhemaji and a pistol with 35 round of bullets was issued to him. He further stated that he was proceeding from Dhemaji town along with his wife (Pw-4) for going to the house of Pw-4. After covering some distance he went to a nearby pan shop, for purchasing cigarette and Pw-4 moved forward. After taking the cigarette while coming back, he noticed a youth coming on a bicycle, was forcing Pw-4 to get on his bicycle. When Pw-4 raised alarm, he challenged the said boy, who dealt a blow to him. He also retaliated by punching him. The said boy brought a fencing pole from a nearby fence and started beating him and consequently he fell on the ground. In course of such beating the appellant's pistol fell on the ground and the said boy picked it up. When he was trying to take back the pistol from the boy, scuffle ensued between the two and accidently one round of bullet got fired from his pistol. He also stated that he did not shot at the victim intentionally. According to Dw-2, he noticed that two youths were quarrelling and he heard the sound of gunshot and out of fear he left the place. The testimony of the Dw-3 was hearsay. 18. The medical evidence of the doctor Pw-17 and the PM report clearly shows that the victim died due to gunshot injury. The oral testimony of Pw-4, the lone eye witness and Pw-1, Pw-2, Pw-3 & Pw-11, who deposed about the oral dying declaration, coupled with the medical evidence of Pw-17, clearly established that the victim Sushil Chetia died due to gunshot injury inflicted by the appellant Indeed the appellant also in his evidence admitted that the injury to the victim was caused by the bullet fired from his pistol. However, he has taken the plea, that he did not shot the victim, rather, during scuffle between him and the victim, accidently a bullet got fired from his pistol which hit the victim causing his death. However, he has taken the plea, that he did not shot the victim, rather, during scuffle between him and the victim, accidently a bullet got fired from his pistol which hit the victim causing his death. However, having regard to the nature and location of the injury, the facts and circumstances under which the injury was caused and evidence of Pw-4, the eye witness, as well as the Pw-1, Pw-2, Pw-3 & Pw-11, we are unable to accept the version of the appellant that the injury was caused due to accidental discharge of bullet from the pistol of the appellant. Therefore, on our assessment of the evidence adduced by both the sides, more particularly, the oral testimony of Pw-1, Pw-2, Pw-4, Pw-3 & Pw-11 and also the medical evidence, we have no hesitation in our mind to hold that the appellant inflicted gunshot injury to the victim. Having held so, the question now falls for consideration is whether the appellant acted in exercise of his right of private defence, while inflicting injuries to the victim, if so, whether he is entitled to the benefit of General Exception under section 96 and 97 of the IPC. 19. Upon scrutiny of the oral testimony of Pw-4, who was admittedly the wife of the appellant at the time of occurrence, we find that the victim was known to the Pw-4, since prior to the occurrence. It is evident from the oral testimony of Pw-4 as well as Dw-1, that when Pw-4 was going alone in the evening and the appellant was at a little distance, the victim insisted her to get on his bicycle, and wanted to apply force, upon the refusal to accompany him. When the appellant challenged the victim, quarrel ensued and both of them engaged in scuffle. It is also evident from the oral testimony of Pw-4, that the occurrence started from the act of the victim forcing the Pw-4 to get on his bicycle and trying to outrage her modesty. When evidently the victim was trying to outrage the modesty of the Pw-4 on the highway and wanted to apply force to compel her to get on 3his bicycle, the appellate, being the husband of Pw-4 resisted the victim, and as such, obviously the victim was the aggressor and the action of the appellant was only retaliatory and preventive. When evidently the victim was trying to outrage the modesty of the Pw-4 on the highway and wanted to apply force to compel her to get on 3his bicycle, the appellate, being the husband of Pw-4 resisted the victim, and as such, obviously the victim was the aggressor and the action of the appellant was only retaliatory and preventive. Therefore, such actions of the appellant to engage in scuffle causing some amount of harm to the victim, while preventing the victim from committing offence against the body of his wife, in our considered opinion was quite natural human conduct, inasmuch as, in our society no husband can be expected to remain silent seeing his wife being subjected to assault actuated by sexual implication by a stranger. The evidence of the Dw-1, that the victim assaulted the appellant by picking up a fencing post and continued to scuffle with the appellant demonstrated, that the victim persisted in the assault, where upon the appellant shot the victim. In view of the above facts and circumstances, in our considered view it would not be correct to say that there was no reason at all on the part of the appellant to claim the right of private defence. Whether in the facts and circumstances of the case, the appellant was justified in causing death of the victim in exercise of right of private defence is altogether a different issue. Because right of private defence is a preventive right circumscribed by the statute and as such there cannot be an unfettered right of private defence. 20. What has caught our eyes is the reason for rejecting the plea of right of private defence by the learned trial Court. Learned Sessions Judge rejected the plea of right of private defence on the ground that, in the facts and circumstances of the case, the appellant did not have the right of private defence of his body. It is to be borne in mind that right of private defence extends not only to defend one's own body or property against any offence but also to defend the body and property of any other person. It is to be borne in mind that right of private defence extends not only to defend one's own body or property against any offence but also to defend the body and property of any other person. Section 97 IPC provides that "Every person has a right subject to the restrictions contained in section 99 to defend-: (First)--His own body, and the body of any other person, against any offence affecting the human body; (Secondly)--The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. 21. The above provision makes it amply clear, that right to private defence extends not only to defend one's own body against any offence, but also to defend the body of any other person against any offence. Therefore, we are of the view, that the learned trial Court fell in error while rejecting the plea of right of private defence of the appellant on the sole ground that there was no apprehension of offence against the appellant's own body. From the evidence of Pw-4 as well as Dw-1, we find that it was the victim, who was the aggressor and attempted to commit offence against the body of Pw-4, being wife of the appellant and in such circumstances retaliation by the appellant to protect the body of his wife in our considered view would certainly come within the preview of section 97 of the IPC. 22. As already indicated above that the right of private defence is circumscribed by the statute. Section 96 of the IPC provides that nothing is an offence which is done in exercise of right of private defence. Section 99 enumerated the acts against which there is no right of private defence. Section 99 also provides that: "the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence". When a person inflicts more harm than it is necessary under the garb of private defence he becomes aggressor and cannot claim the benefit of General Exception under section 96 of the IPC. When a person inflicts more harm than it is necessary under the garb of private defence he becomes aggressor and cannot claim the benefit of General Exception under section 96 of the IPC. Section 100 of the IPC provides, when the right of private defence of body extends to causing death:, section 103 IPC provides when the right of private defence of property extends to causing death, and section 101 IPC provides, when right of private defence extends to causing harm other than death. 23. In the case in hand, as already indicated above, the occurrence started from the action of the victim in his attempt to outrage the modesty of the wife of the appellant. From the evidence, it is also apparent, that initially when the appellant challenged the victim there was scuffle between the two and the victim also assaulted the appellant with a stick. Evidently the occurrence took place when the appellant was defending the body of his wife against the offence against her body, which in the facts and circumstances cannot be said to be more than outraging her modesty. Evidently the victim did not have any deadly weapon of offence so as to raise an apprehension of causing grievous hurt or death. Therefore from the facts and circumstances, under which, the occurrence took place, we are unable to hold, that there was reasonable ground for apprehending that the offence, which occasions the exercise of right of private defence was of any of the description enumerated in Section 100 of the IPC, entitling the appellant to cause death of the victim in exercise of right of private defence. Since there was no reason or circumstance entitling the appellant to cause death of the victim in exercise of the right of private defence, we are of the considered opinion, that the appellant while causing death of the victim in exercise of right of private defence, exceeded the extent of his right. Therefore, the benefit of section 96 cannot be made available to the appellant in the facts and circumstances of the case. Therefore, the benefit of section 96 cannot be made available to the appellant in the facts and circumstances of the case. However, the case of the appellant in the above facts and circumstances, in our considered view squarely come with the sweep of exception 2 to Section 300 IPC, which provides, that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Evidently there was no premeditation or intention to cause death, inasmuch as the occurrence ensued suddenly. This apart, the appellant being a PSO of an officer, the arms possessed by him was also quite natural. 24. Since the offence committed by the appellant is covered by Exception 2 to Section 300 IPC, obviously, the appellant shall be liable for commission of culpable homicide not amounting to murder defined in section 299 IPC. Though having regard to the facts and circumstances under which the offence was committed, the intention to cause death may not be attributed to the appellant, but having regard to the weapon used and the nature of injury, intention of the appellant to cause such injury as is likely to cause death, can by no stretch of imagination be ruled out. Therefore, we see no reason to interfere with the conviction of the appellant under section 304 Part-I, recorded by the learned trial Court. Accordingly, we confirm and upheld the conviction of the appellant under Section 304 Part-I IPC as recorded by the learned Sessions Judge, although for different reasons. 25. Having considered the facts and circumstances, under which the occurrence took place, more particularly the absence of pre meditation or intention to cause death and that the offence was committed in the process of taking preventive action, we are of the firm opinion, that the sentence awarded by the learned trial court was not proportionate to the gravity of the offence and the same is required to be modified. It appears from the record, that the appellant has been in custody during the investigation and trial and post trial for more than 7 years 6 months. It appears from the record, that the appellant has been in custody during the investigation and trial and post trial for more than 7 years 6 months. In our considered opinion, the period which the appellant has already undergone in jail till now would meet ends of justice and accordingly, we sentence the appellant to undergo the period of imprisonment, which he has already undergone till today. 26. Accordingly, appeal stands partly allowed. The accused appellant be released and set at liberty forthwith, if not required in any other case. 27. Send down the LCR along with a copy of this judgment and order. 28. The release order be sent to the Superintendent of Jail, Lakhimpur.