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2019 DIGILAW 514 (GAU)

Rubul Changmai v. State of Assam

2019-04-26

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : ACHINTYA MALLA BUJOR BARUA, J. 1. Heard Mr. T. Deuri, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam. 2. The Office Note dated 15.11.2018 indicates that service on the informant/respondent No. 2 was complete, but inspite of it none appears. 3. An ejahar dated 13.12.2014 was lodged by Hem Chandra Gogoi, Son of Tipiram Gogoi before of the Officer-in-Charge of Saikhowa Ghat Char Police Station stating that on 12.12.2014 at about 7/7.30 PM, the accused Rubul Changmai, a resident of Low Pani Gaon had killed Bubul Gogoi by inflicting severe cut injuries in the neck with a machete (mit dao). 4. The Doctor who conducted the post mortem examination was examined as PW-1 and in his deposition he stated the following injuries were found on the body of the deceased: "External Appearance: Medium built male body with swarthy complexion with short black hair, wearing a Khaki half pant with white gangee, a yellow sporting white full shirt and a dark navy blue sweater. Rigor Mortis is present. The following two injuries were seen on neck: (i) A lacerated wound measuring 13 cm in length X 5 cm breadth X 2 cm depth extending from the lower jaw on the left below the chin to the hair line posteriorly. (ii) A lacerated wound measuring 12 cm in length X 5 cm breadth X 7 cm in depth found interior and parallel to the first wound described and separated by 2 cm. All other organs were found healthy." 5. The informant, Hem Chandra Gogoi, examined himself as PW-2 and deposed that in the evening of 12.12.2014 at about 6/6.30 P.M., he heard a hue and cry from near the residence of one Bhaya Ganju (PW-3). Upon hearing it, he immediately came out of his residence and saw that the accused was trying to flee away from the place of occurrence by saying that he had caused the injuries to the deceased, Bubul Gogoi with a machete (mit dao). Thereafter, he found his brother lying on the ground with two cut injuries on his neck and also saw a machete lying at the place of occurrence. In cross, PW-2 stated that his residence is situated at a distance of 1KM away from the residence of Bhaya Ganju and there is a bamboo bush in front of his residence. 6. Thereafter, he found his brother lying on the ground with two cut injuries on his neck and also saw a machete lying at the place of occurrence. In cross, PW-2 stated that his residence is situated at a distance of 1KM away from the residence of Bhaya Ganju and there is a bamboo bush in front of his residence. 6. We have taken note of that the deposition of PW-2 is that upon hearing hue and cry from the residence of Bhaya Ganju, he came out of his own residence and saw the accused person trying to flee away from the place of occurrence. But again in cross, he states that his residence is about 1 KM away from the residence of Bhaya Ganju. We are unable to accept that the PW-2 had actually heard any hue and cry from a distance of 1KM from his residence where he was present and after coming out of the residence, which is located at a distance of 1KM he saw the accused trying to flee away from the place of occurrence. 7. PW-3, Bhaya Ganju in his deposition stated that having heard a hue and cry on the road in front of his residence, he came out and heard two sounds thud thud and found the deceased Bubul Gogoi lying on the road in an injured condition. He also saw some cut injuries on the back side of the left ear lobe. He further deposed that at that time he saw the accused Rubul Changmai coming towards his residence with a torch light in his hand. PW-3 further deposed that before he came out of his residence he heard a quarrel between Bubul Gogoi and Rubul Changmai and he could recognize them from their voice. In cross, PW-3 states that the place of occurrence is at a distance of 50-60 feet away from his residence. 8. Mr. T. Deuri, learned counsel for the appellant has raised a contention that as it was night time which required the accused to go toward his residence with a torch in his hand, therefore, there is a possibility that PW-2 may not have seen and recognized him. 9. 8. Mr. T. Deuri, learned counsel for the appellant has raised a contention that as it was night time which required the accused to go toward his residence with a torch in his hand, therefore, there is a possibility that PW-2 may not have seen and recognized him. 9. Without going to the said aspect of the matter, we take note of that PW-3 had further stated that before he came out of his residence he heard a quarrel between the deceased Rubul Gogoi and the accused Rubul Changmai and he could recognize them from their voice. We further take note of that in cross, PW-3 stated that his residence is at a distance of 50-60 feet from the place of occurrence. 10. It being so, it cannot be held to be unreasonable that PW-3 had heard the deceased Rubul Gogoi and the accused Rubul Changmai quarrelling between themselves and that he could recognize them from their voice in a situation where all of them are co-villagers and there is nothing on record to show that they were not known to each other. 11. We also take note of that even in the cross examination of PW-3, the defence had not discredited the said piece of evidence that PW-3 had heard the deceased and the accused person quarrelling and could recognize them from their voice. 12. Mr. T. Deuri, learned counsel for the appellant relies upon the pronouncement of the Supreme Court rendered in Inspector of Police, Tamil Nadu v. Palanisamy alias Selvan (2008) 14 SCC 495 wherein in paragraph 5 it was held as follows: "5. We find that the High Court has analysed the evidence in great detail and we find that the evidence of P.Ws. 1 and 2 is not truthful so far identification aspect is concerned. Undisputedly it was a dark night. They claimed to have identified them from their voice. Though such identification in some cases is possible in the instant case no evidence was adduced to show that the witnesses were closely acquainted with the accused to even identify him from his voice, that too from a very short replies, purported to have been given. This fact was lost sight of by the Trial court. The High Court found the possibility of identification as claimed by Pws 1 and 2 an impossibility. 13. This fact was lost sight of by the Trial court. The High Court found the possibility of identification as claimed by Pws 1 and 2 an impossibility. 13. We have taken note of that in the matter before the Supreme Court, the PW-1 and 2 therein had deposed that they had seen the deceased in the company of the accused at around 11 o'clock in the night. No further evidence was available as to in what manner the PW 1 and 2 were acquainted with the accused person. In the circumstances, the Supreme Court was of the view that the claim of the PW-1 and 2 therein that they had identified the accused and the deceased from their voice was unacceptable as no evidence was available to show that the witnesses were closely acquainted with the accused so as to identify him from his voice. But at the same time in paragraph 5, the Supreme Court was also of the view that an identification by voice is possible in some cases. In the circumstances, we have to understand that identification by voice is also acceptable if the evidence on record indicates some kind of acquaintance or proximity between the witness and that of the accused or the deceased so as to identify them from their voice. 14. In the instant case, the evidence on record reveals that PW-3 and the accused as well as the deceased were all co-villagers living at a close proximity with each other. In the absence of any specific evidence that inspite of being co-villagers and living in proximity with each other they were so unknown to each other so that one cannot recognize the other from their voice, we are of the view that the proposition laid down by the Supreme Court that the absence of being acquainted with each other would be a relevant factor to assess as to whether the witness could identify the accused or the deceased from his voice would be inapplicable in the present case. 15. We also take note of the proposition laid down by the Supreme Court that identification through voice is possible in some cases and accordingly due to close proximity of the PW-3 with the accused and the deceased, we are of the view that the other proposition would be applicable that identification through voice is possible in the present case. 16. We also take note of the proposition laid down by the Supreme Court that identification through voice is possible in some cases and accordingly due to close proximity of the PW-3 with the accused and the deceased, we are of the view that the other proposition would be applicable that identification through voice is possible in the present case. 16. Having arrived at a conclusion that the accused and the deceased were together or at a very close proximity with each other when the occurrence had taken place, we are of the view that the accused and the deceased can be accepted to have been together at the time when the occurrence had taken place. 17. It being so, we are of the view that the proposition laid down by the Supreme Court in paragraphs 21 and 22 of Trimukh Maroti Kirkan Vs. State of Maharashtra reported in (2006) 10 SCC 681 would be applicable in the present case. 18. In paragraph 22 of Trimukh Maroti (supra), a principle had been laid down that if the prosecution succeeds in leading evidence to show that shortly before the commission of the crime the accused and the deceased were seen together or whether the offence took place in a dwelling house where the husband also normally resided, in such situation if the accused person had not offered any explanation as to how the injuries had occurred on the body of the deceased or offered the explanation is found to be false, it is a strong circumstance which would indicate that it is the accused who is responsible for the commission of the offence. 19. In the instant case, we have gone through the records of the trial, more particularly, the statement of the accused under Section 313 Cr.P.C., where apart from a general denial that he is not involved in the commission of the offence had not taken any other defence nor had explained the circumstance under which the injuries were caused to the deceased. 20. We also take note of that the evidence on record indicates that there was no presence of any other person at the time of the occurrence other than that of the accused and the deceased. 20. We also take note of that the evidence on record indicates that there was no presence of any other person at the time of the occurrence other than that of the accused and the deceased. Accordingly, we are of the view that the presence of the accused with the deceased and his subsequent conduct of not giving an explanation as to how the injuries were inflicted on the deceased becomes an additional link in the chain of circumstances to make it complete. Therefore, we conclude that it is the accused who had caused the injuries on the deceased which had led to his death. 21. Having said so, we take a look at the nature of the injuries that were inflicted on the deceased. The medical evidence as indicated above shows that there were two lacerated injuries around the chin portion of the deceased running up to the left ear lobe and further the death was caused as because the deceased went into the state of coma after the injuries were inflicted and because of hemorrhage. We also take note of that the death was not instantaneously caused to the deceased but he had died after some time while he was being taken to the hospital. 22. We also take note of that the evidence of PW-3 from whom the presence of the accused could be established also provides that there was a quarrel between the deceased and the accused at the time of the occurrence. Evidence has further been led that there was also a quarrel between the accused and the deceased in the morning of the date of the occurrence. 23. Considering the aforesaid circumstances as regards the nature of the injuries which are lacerated wounds around the chin portion and that there was a quarrel between the accused and the deceased both earlier in the morning as well as at the time of occurrence, we are of the view that the act of the accused can be brought within the purview of Exception 4 of Section 300 of the IPC. Accordingly, it being a case of culpable homicide not amounting to murder and further being convinced that it is an act only done with the knowledge that it is likely to cause death, but without there being any intention to cause death, we are of the view that the accused appellant is to be convicted under Section 304 Part II of the IPC. 24. Considering the manner in which the act was done by the accused, we accordingly sentence him to undergo rigorous imprisonment for a period of five years by retaining the fine of Rs. 30,000/- imposed by the learned Sessions Judge and in the event he fails to pay the fine to undergo further rigorous imprisonment of six months in default thereof. 25. We are told that the petitioner has been in custody from 06.10.2016 till date with further imprisonment of the statutory period of 90 days during the period of investigation. The period already undergone shall be set off against the sentence of five years of imprisonment imposed on the accused appellant. 26. At this stage, Ms. B. Bhuyan, learned Additional Public Prosecution has raised the question of victim compensation to the family of the victim. We have taken note of that the learned trial court in its judgment and order dated 06.10.2016 had not given a consideration to the same. We also take note of that this is not an appeal either by the victim family or by the State authorities, but it is an appeal by the accused appellant. In the circumstance, we leave open the question of payment of victim compensation to be taken up by the Legal Services Authorities, if approached by the victim family. In the event of such approach, a reasoned order be passed thereof. 27. Appeal stands partly allowed. 28. Send back the LCR.