Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 175 (GAU)

SUNIT MAL v. STATE OF ASSAM

2019-02-07

MIR ALFAZ ALI, SONGKHUPCHUNG SERTO

body2019
JUDGMENT : MIR ALFAZ ALI, J. 1. We have heard learned amicus curiae for the appellant, Mr. R.K. Dutta and learned Addl. P.P. for the State/respondent No. 1, Ms. B. Bhuyan. 2. This appeal is directed against the judgment and order dated 24-02-2016, passed by learned Addl. Session Judge(FTC), Silchar, in Sessions Case No. 123/2015. By the said judgment, learned Addl. Session Judge convicted the appellant u/s 302 IPC and sentenced him to rigorous imprisonment for life and fine of Rs. 5,000/- with default stipulation. 3. Deceased in this case was the son of the accused/appellant. As per prosecution case, on 04-12-2014 at night, the accused/appellant assaulted his son (victim) causing his death. In the next morning the appellant confessed before his relatives (maternal aunt) and others that on previous night he assaulted his son Ajoy (victim) and having come to know about the occurrence, the FIR (Ext.-2) was lodged by one of the co-villager Khogen Roy. On the basis of the said FIR, police registered Dholai P.S. Case No. 527 of 2014 u/s 302 IPC and commenced investigation. During investigation inquest report was prepared and the body was sent for post mortem examination. 4. Pw 9, Dr. Gunajit Das conducted the post mortem examination on the body of the victim and found the following injuries : "(i) Pressure abrasion of size 1 x 1 cm over right side of the chest just above the clavicle. (ii) Pressure abrasion of size 2 x 2 cm over posterior aspect of right shoulder. (iii) Scalp on reflection found contused over the left side with hematoma formation of size 6 & 7 cm over parieto-temporal region. (iv) fissured fracture of the left parietal bone over occipital bone. (v) Lower left lateral incisor tooth broken. (vi) Membranes congested. (vii) Subdural haemorrhage present over the left temproroparietal region of brain. (viii) Intracerebral haemorrhage present over the left parietal lobe. (ix) Fracture of upper 1/3rd of the sternam with contusion of the surrounding soft tissues." The autopsy doctor (PW 9) opined, that death was caused due to shock following injuries sustained by the victim, which were ante mortem in nature and caused by blunt force impact. Approximate time of death was stated to be 24 to 34 hours before the post mortem examination. 5. On conclusion of the investigation, police laid charge-sheet against the present appellant u/s 302 IPC and eventually he stood trial. 6. Approximate time of death was stated to be 24 to 34 hours before the post mortem examination. 5. On conclusion of the investigation, police laid charge-sheet against the present appellant u/s 302 IPC and eventually he stood trial. 6. In course of trial, prosecution examined in as many as nine witnesses to establish the charge. The accused did not adduce any defence evidence. On appreciation of evidence brought on record, learned Addl. Sessions Judge convicted the appellant under Section 302 IPC and awarded sentence as indicated above. 7. Mr. R.K. Dutta, learned amicus curiae for the appellant submits that except the extrajudicial confession, there was no other evidence to prove the charge against the appellant. Further contention of the learned amicus curiae is that even if, the evidence adduced by the prosecution and the confession are believed to be true, the accused/appellant could not have been convicted under Section 302 IPC, inasmuch as, the intention to cause death was totally absent in the instant case. Ms. B. Bhuyan, learned Addl. Public Prosecutor supporting the conviction and sentence, contends, that the confession made by the accused can form the basis of conviction if found to be voluntary and true. 8. We have scanned the evidence and examined the materials on record. PW 1 testified that on the following day of the occurrence, one Mon Kumar Mal came to her house and informed that the appellant killed his son and he confessed his guilt before him. Having come to know about the occurrence, she immediately rushed to the house of the accused/appellant and found the body of the victim lying in his courtyard. During cross-examination of the said witness, it was elicited that the deceased was alcoholic and frequently used to assault his father (the accused) under the influence of alcohol. 9. Pw 3, Sumitra Mal, who happened to be the wife of Mon Mal and aunt of the accused deposed, that on the following day of the occurrence, the accused came to her house and confessed to have assaulted his son Ajoy. Having come to know about the occurrence, she immediately rushed to the house of the accused and found the body of the victim lying in the courtyard. This witness also stated, that the victim being drunk used to pick up quarrel with his father very often. Having come to know about the occurrence, she immediately rushed to the house of the accused and found the body of the victim lying in the courtyard. This witness also stated, that the victim being drunk used to pick up quarrel with his father very often. PW 2 and PW 4 also stated, that while they were in the house of Aniruddha Mal, the accused confessed before them that he killed his son on the previous night. 10. Pw 6 stated, that having come to know about the occurrence, he along with other co-villagers went to the place of occurrence and on being asked by them, the accused confessed, that he killed his son. During examination u/s 313 Cr.P.C., the accused, however, retracted his confession and gave an explanation that on the previous night Ajoy went out after meal and in the morning he noticed the victim lying dead in a jungle and he confessed before the public under coercion. All the witnesses, as indicated above, deposed, that having come to know about the occurrence from the confession of the accused disclosing that he assaulted his son the night before, they rushed to his house and found the body in the courtyard of the accused/appellant. Thus, the evidence of all the prosecution witnesses and the attending circumstances belied the explanation given by the accused that the victim might have been killed by someone else in the jungle. 11. On careful scrutiny of the evidence of all the prosecution witnesses, we do not find any infirmity in the oral testimony of PW 1, PW 2, PW 3, PW 4 & PW 6, who deposed about the confession made by the accused, which in our opinion, was perfectly voluntary and trustworthy. 12. Learned trial court is also found to have recorded the conviction of the appellant, primarily on the basis of the extra-judicial confession of the appellant. Law is well settled, that the confession is an efficacious proof of guilt, however, acceptability of a confession, be it judicial or extra-judicial, depends on the voluntariness and trustworthiness of a confession. If the confession withstand the twin test of voluntariness and trustworthiness, such confession itself can form the basis of conviction. Law is well settled, that the confession is an efficacious proof of guilt, however, acceptability of a confession, be it judicial or extra-judicial, depends on the voluntariness and trustworthiness of a confession. If the confession withstand the twin test of voluntariness and trustworthiness, such confession itself can form the basis of conviction. In the present case, we find that confession was perfectly voluntary and true and therefore, we do not find any cogent reason to disagree with the learned trial court, so far as, it's finding to the extent of holding the accused to be perpetrator of the offence. 13. We have also noticed that there are evidence showing that the victim was a habitual drunker and he picked up quarrel and assaulted his father (accused) under the influence of alcohol. The post mortem report and the medical evidence also show, that the injuries were caused by blunt force impact. The above evidence, that the accused used to assault his father under the influence of alcohol very frequently and the nature of injury as well as the weapon used by the appellant to assault the victim, being his son, we find it difficult to attribute any intention to the accused for causing death of the victim. The evidence also does not reflect any pre-meditation on the part of the appellant. Rather, the totality of the evidence brought on record and the facts and circumstances of the case clearly demonstrates, that the act of the appellant in assaulting his son was actuated by sudden provocation. Therefore, having taken note of the entire evidence and the facts and circumstances of the case, which clearly indicates that there was no intention to cause death or cause such injury as is likely to cause death and injuries were caused by blunt weapon because of sudden provocation, we set aside the conviction and sentence of the appellant u/s 302 IPC, instead convict him u/s 304 Pt-II IPC. 14. Having convicted the accused/appellant as above, we sentence him to undergo rigorous imprisonment for 5 (five) years. The period undergone by the appellant in jail during investigation, trial and thereafter, shall stand set off. 15. With the above modification in the conviction and sentence of the appellant, appeal stands partly allowed. 16. Appreciating the assistance rendered by Mr. R.K. Dutta, learned Amicus Curiae, we hereby provide that he will be entitled to Rs. 7,500/- as professional fees. The period undergone by the appellant in jail during investigation, trial and thereafter, shall stand set off. 15. With the above modification in the conviction and sentence of the appellant, appeal stands partly allowed. 16. Appreciating the assistance rendered by Mr. R.K. Dutta, learned Amicus Curiae, we hereby provide that he will be entitled to Rs. 7,500/- as professional fees. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Mr. R.K. Dutta. 17. Send back the LCR along with a copy of this judgment.