Research › Search › Judgment

Tripura High Court · body

2020 DIGILAW 10 (TRI)

Ram Kumar Sukladas v. State of Tripura

2020-01-16

ARINDAM LODH, S.TALAPATRA

body2020
JUDGMENT : S. Talapatra, J. 1. Heard Mr. S. Bhattacharjee, learned counsel appearing for the appellant as well as Mr. Ratan Datta, learned PP appearing for the state. 2. This is an appeal from the judgment and order of conviction and sentence dated 02.07.2016 delivered in S.T.(T-1) 14 of 2015 the Additional Sessions Judge, West Tripura, Khowai, as he then was. By the said judgment, the appellant has been convicted under Section 302 of the IPC and sentenced to suffer imprisonment for life with fine of Rs. 2000/- with default stipulation. The genesis of the case is rooted in the complaint filed by one Parimal Chandra Das (PW-7) to the Officer-in-charge, Khowai PS (Exbt-2) revealing that on 30.07.2016 at about 6 o' clock in the morning one Ramkumar Shukla Das alias Haridas alias Sanyashi of their locality had entered in the house of his elder brother, namely Gouranga Chandra Das (the deceased) and assaulted him causing him several injuries. In a critical condition, he was taken to Khowai Hospital. The doctors there declared him dead. 3. Based on the said complaint filed by Parimal Chandra Das (PW-7), the Khowai PS case No. 50 of 2010 under Section 449/302 of the IPC was registered and taken up for investigation. On completion of the investigation, the final police report was filed sending up the appellant to face the trial. On commitment, the Additional Sessions Judge, West Tripura, Khowai framed the charge under Section 302 of the IPC, to which the appellant pleaded not guilty and claimed to be tried. 4. To substantiate the charge as many as 16 witnesses were examined including the informant, Chandan Deb (PW-5), Kalpana Sukla Das (PW-8) and the Post-mortem doctor. The prosecution has adduced nine documentary evidence including the inquest report (Exbt-4) and the post-mortem examination report (Exbt-9). Having recorded the evidence, led by the prosecution; the appellant was examined under Section 313 of the Cr.P.C. Thereafter, on appreciation of the evidence, the said judgment of conviction has been returned by the Additional Sessions Judge, West Tripura, Khowai as he then was. 5. Mr. S. Bhattacharjee, learned counsel appearing for the appellant has submitted that there is no evidence of previous enmity or there is no motive to murder the deceased. 5. Mr. S. Bhattacharjee, learned counsel appearing for the appellant has submitted that there is no evidence of previous enmity or there is no motive to murder the deceased. But, there is evidence that the deceased and the appellant engaged themselves in a squabble followed by the assault with a trishul (trident) which caused death of the deceased. According to Mr. Bhattacharjee, learned counsel even though in the complaint it has been alleged that there were several injuries on the person of the deceased, but from the post-mortem examination report, no such injuries can be located. Therefore, the death was caused by the single blow given by the trishul causing perforation in the lungs. The death was caused by incessant hemorrhage. 6. Mr. Bhattacharjee, learned counsel has submitted that three circumstances are paramount in the present appeal: (1) Absence of motive to kill. (2) engagement in a free fight before the fatal blow was given and (3) the unbridled anger of the appellant as apparent in the face of the record. 7. Mr. Bhattacharjee, learned counsel has thus submitted that the offence cannot be brought within the parameters of murder but it would come under the fourth exception of Section 300 which provides that culpable homicide is not murder if it is committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 8. It is immaterial on such cases which party offered the provocation or gave the first blow. In support of his contention, Mr. Bhattacharjee, learned counsel has relied on a decision of the Apex Court in Ramesh Vithalrao Thakre and Anr. v. State of Maharashtra, reported in AIR 1995 SCC 1453: (1995 Cri.L.J. 2907 (SC)) where the Apex Court has observed that when there is absence of the other injury, but a single injury caused the death and there is no knowledge that the injury which the assailant was causing was likely to cause death of the victim. As there is no material to indicate intention to cause death even to cause bodily injury which is likely to cause death, the offence under such circumstances would not be murder, but would fall under Section 304, Part II of the IPC. The report has been relied to the death which been caused by a single injury. 9. As there is no material to indicate intention to cause death even to cause bodily injury which is likely to cause death, the offence under such circumstances would not be murder, but would fall under Section 304, Part II of the IPC. The report has been relied to the death which been caused by a single injury. 9. Mr. Bhattacharjee, learned counsel has placed his reliance on Ankush Shivaji Gaikwad v. State of Maharashtra, reported in (2013) 6 SCC 770 : (2013 Cri.L.J. 3044: AIR 2013 SC (Cri.) 1435) where it has been held that to determine whether the offence is a murder or culpable homicide not amounting to murder, the court should see at the nature of the weapon used and which part of the body such injury has been inflicted. Having referred to the fourth exception of Section 300 of the IPC it has been observed that in a case of sudden quarrel igniting anger and the assailant in that fit dealt, a fatal strike for absence of no premeditation, prior enmity or motive to commit offence and non-use of lethal weapon in committing the death by single blow, such death would come under the fourth exception to Section 300 of the IPC. The appellant can only be convicted accordingly. 10. Further, Mr. Bhattacharjee, learned counsel has relied on the decision of the Apex Court in Surain Singh v. State of Punjab, reported in (2017) 5 SCC 796 : ( AIR 2017 SC 1904 : AIR 2017 SC (CRI) 737). The Apex Court while dilating the fourth exception has observed that the fourth exception to Section 300 of the IPC can only be applied in absence of any premeditation. It is very clear from the words of the exception itself. The exception contemplates that the sudden fight shall start on the heat of passion. The fourth exception to Section 300, IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation, not covered by the first exception. The said exception is founded upon the same principle. In both the exceptions, absence of premeditation is sine qua non. But, while in the case of the first exception to total deprivation of self-control is required to be shown. The said Exception deals with a case of provocation, not covered by the first exception. The said exception is founded upon the same principle. In both the exceptions, absence of premeditation is sine qua non. But, while in the case of the first exception to total deprivation of self-control is required to be shown. In the case of the fourth exception, there should exist heat of passion which obfuscates man's sober reason and urges him to the deeds which he would not otherwise do. There is element of even in the fourth exception provocation as in the first exception, but the injury done is not the direct consequence of that provocation. In fact, the fourth exception deals with cases in where notwithstanding a blow might have been given, on some provocation in the origin of the dispute or in whatever way the quarrel might have originated, the subsequent conduct of both parties puts them in respect of guilt upon on equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed cannot then clearly traceable to the unilateral provocation, nor could in such cases the whole blame be placed on one side. If it were so, the exception which is more appropriately applicable, is the first exception. There is no previous deliberation or determination of the fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn, it did take. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame for each fighter. 11. Having observed thus the Apex Court has relied on its previous decision in State of A.P. v. Rayavarapu Punnayya, reported in (1976) 4 SCC 382 : ( AIR 1977 SC 45 : 1977 Cri.L.J. 1 (SC)) where the Apex Court has observed as follows: "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. All "murder" is "culpable homicide" but not vice versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death-leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304. depending, respectively, on whether the second or the third clause of Section 299 is applicable. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304. depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder" punishable under the first part of Section 304. of the Penal Code." (Emphasis added) 12. The Apex Court has also in Budhi Singh v. State of H.P., reported in (2012) 13 SCC 663: (2013 Cri.L.J. 962: AIR 2013 SC (CRT) 531) has dwelled upon the doctrine of sudden and grave provocation and observed as follows: (Paras 13, 21 of Cri.L.J.) 18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury. 19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....." (Emphasis added) 13. Even in Kilkar Singh v. State of Raj-as than, reported in (1993) 4 SCC 238 : ( AIR 1993 SC 2426 : 1993 Cri.L.J. 3255 (SC)), the Apex Court had occasion to observe that to bring certain act within the category of sudden fight in the heat of passion, it must be mutual combat or exchange of blows on each other and neither of the party has taken any advantage of the sudden quarrel to execute their premeditated design. 14. It has been further observed that the occasion for sudden quarrel must not only be sudden but the party who is assaulted must be on an equal footing in the point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, in that occasion the fourth exception is not attracted and the commission must be one of murder punishable under Section 302 of the IPC. As such, it is apparent that for coming to a conclusion that the sudden fight without premeditation of mind to execute a death or without a design, all these factors have to be considered strictly by the court. 15. Mr. Bhattacharjee, learned counsel in his conclusive note has submitted that the appellant by practice is a sanyashi and usually he keeps a trishul as per the religious practice. He did not come with the trishul with a hidden design to execute the death, rather in the sudden quarrel that broke out, out of the passion he had dealt with the fatal blow. 16. From the other side, Mr. Ratan Datta, learned PP has submitted that if the testimonies of PWs. 5, 8 and 9 are scrutinized, the real facet of transaction of the offence would reveal. 17. PW -5 is no doubt an independent witness. 16. From the other side, Mr. Ratan Datta, learned PP has submitted that if the testimonies of PWs. 5, 8 and 9 are scrutinized, the real facet of transaction of the offence would reveal. 17. PW -5 is no doubt an independent witness. He has seen that the appellant has given the blow having positioned him on the chest of the deceased. 18. PW -8, Kalpana Sukla Das has narrated the genesis of quarrel. She has stated that she noticed that blood was oozing out from the right shoulder of the deceased. She has as well noticed that the appellant was on the chest of the deceased and inflicting blows upon Gouranga (the deceased). 19. PW-9, Rina Das had also appeared in the place of occurrence and she saw the appellant inflicting blows upon the victim (now deceased). One of the important witnesses, in this case, is PW-9, the wife of the deceased who has stated that she had tried to resist the appellant from further attack when they broke out in a free fight. Even she had shouted at them. Within a fleet of moments, the appellant gave the blow on the body of her husband. 20. The testimony of PW-16, the postmortem doctor, has been referred by Mr. Datta, learned PP to show that the injury that was inflicted by the appellant, even though single, but that was a penetrating wounds which passed through the lateral aspect of left upper arm just 8 cm. Below left shoulder to tit, size of the injury was 2.5 cm x 2.5 cm x cavidity. PW-16 had introduced the post-mortem examination report (Exbt-9). In the post-mortem examination report, it has been observed that there was no other injury except the injury which has been described in detail. The doctor (PW-16) has clearly opined that the cause of death is shock as a result of hemorrhage following injury to the left lung as mentioned in the post-mortem report caused by hard and pointed weapon. 21. For appreciation of the rival contentions as projected by the counsel for the parties, we have surveyed the evidence and found that the reference to the evidence as made by Mr. Datta, learned PP is relevant and supports substantially the prosecution case. A note of evaluation is recorded below. 22. PW-1, Bimal Das, is the younger brother of the complainant. For appreciation of the rival contentions as projected by the counsel for the parties, we have surveyed the evidence and found that the reference to the evidence as made by Mr. Datta, learned PP is relevant and supports substantially the prosecution case. A note of evaluation is recorded below. 22. PW-1, Bimal Das, is the younger brother of the complainant. He did not see the occurrence but on registering the alarm raised by PW-9, he had rushed to the house of his elder brother and found the dead body. He is the witness of the seizure of trishul and his signature was identified by him in the seizure list (Exbt.- 1). 23. PW -2, Subhasis Paul has stated that he did not see the occurrence. 24. PW-3, Nirmalendu Das, is a hearsay witness, however he had scribed the complaint. 25. PW-4, Namita Deb, is a witness from neighbourhood. She saw Gauranga (the deceased) was trembling and blood was oozing out from his body. She had noticed the marks of injury on his right soldier and on his abdomen. They had arranged the vehicle for shifting the victim to Khowai Hospital. In the hospital she heard how the injury was received by the deceased. 26. PW-5, Chandan Deb, has been discussed while referring the submission of Mr. Datta, learned PP. 27. PW-6, Krishna Charan Ghosh, is a witness to the seizure which was carried on 31.07.2010. He has identified his signature on the seizure list which is marked as Exbt-2. 28. PW-7, Parimal Chandra Das, is the complainant. He also did not see the occurrence. He had entered into the place of occurrence immediately after the victim received the fatal blow. He has shifted his brother to Khowai Hospital where he was declared dead. 29. PW-8, Kalpana Sukla Das, is the witness whose testimony has been referred. 30. PW-9, Rina Das, is the wife of the deceased. Her testimony has been substantially referred while recording the submission of Mr. Datta, learned PP. 31. PW-10, Kajal Routh, heard the alarm raised by PW-9. He appeared in the place of occurrence and helped to shift the victim to the Khowai Hospital. He is the witness to the inquest procedure and accordingly he has signed over the inquest report (Exbt-4). 32. PW-11, Khokan Nath, a constable of Police is the another witness of the seizure of gamcha. He appeared in the place of occurrence and helped to shift the victim to the Khowai Hospital. He is the witness to the inquest procedure and accordingly he has signed over the inquest report (Exbt-4). 32. PW-11, Khokan Nath, a constable of Police is the another witness of the seizure of gamcha. He has identified his signature on the seizure list. 33. PW-12, Gautam Das, a constable of Police, is another witness of the seizure of gamcha. 34. PW-13, Sankar Datta, is the recording officer who filled the FIR form on receipt of the complaint. 35. PW-14 is the investigating officer and he has narrated how he had carried out the investigation, collected the reports of the inquest and the post-mortem examination and on recording the statements of the witnesses when he found a prima-facie case, filed the charge sheet as stated. But, he has stated in the cross-examination that he did not send the trishul for forensic examination to ascertain whether that weapon was used in committing the said offence. 36. PW-15, Rabindra Chandra Debnath, is one of the seizure witnesses of trishul who signed on the seizure list (Exbt-8). 37. PW-16, Dr. Uttam Kumar Barma, had conducted the post-mortem examination over the dead body of Gauranga Chandra Das (the victim) and he had framed his opinion after post-mortem examination. What opinion he had given has been recorded by this court. 38. Having browsed through the thick of the records, we find that there is no evidence of any premeditation. The evidence reflects sudden breaking out of squabble and a free fight, in the course of which the appellant gave that fatal blow causing the single injury, which had penetrated the left lung causing profuse bleeding and out of hemorrhage from the said injury, the victim died. 39. Even the interested witnesses did not tell, there had any previous enmity between the appellant and the deceased. Nobody knows for what reasons the free fight took place. Ultimately that ignited such intense human passion that the appellant, as it appears, lost all control and gave the fatal blow. So far the place of injury is concerned, no doubt it is a vital part. In this regard, it appears from the statement of PW-9 that the blow was initially targeted on the arm of the appellant, but it had touched accidentally the lung. So far the place of injury is concerned, no doubt it is a vital part. In this regard, it appears from the statement of PW-9 that the blow was initially targeted on the arm of the appellant, but it had touched accidentally the lung. This gives the appellant a benefit in this regard that that vital part was not targeted but it is an accidental one. 40. Having observed thus, we are of the opinion that the offence should not have been brought under Section 302 of the IPC, as the act falls within the fourth exception of Section 300 of the IPC. Thus, what the act has resulted in, is homicidal in nature amounting to murder. 41. We are of the final view that the offence becomes punishable under Section 304 part II of the IPC. As such the conviction and sentence under Section 302 of the IPC are interfered with and set aside. However, since the offence under Section 304 part II is cognate and minor to the offence under Section 302 of the IPC. We are of the further view that without framing any formal charge in exercise of the power conferred by Section 222 of the Cr.P.C., the appellant may be convicted under Section 304 Part II of the IPC for committing homicide not amounting to murder. Accordingly, the appellant is convicted under Section 304 Part II of the IPC. On due consideration of all the relevant aspects, we think that the appellant shall be sentenced to suffer rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 5000 in default of payment of fine further he shall suffer 3 months simple imprisonment. It is directed that the detention as suffered by the appellant, shall be set off from the substantive imprisonment in terms of Section 428 of the Cr.P.C.. In the result, the appeal stands partly allowed. Send down the LCRs forthwith. Interlocutory application, if any pending, stands disposed of. Appeal partly allowed.