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2020 DIGILAW 11 (GAU)

Pransis William v. State of Assam

2020-01-03

MANISH CHOUDHURY, MIR ALFAZ ALI

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Ms. B. Sarma, learned Amicus Curiae appearing for the appellant and Mr. J. Dutta, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 06.04.2018 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 72(J-J)/2017, whereby the appellants were convicted under section 302/34 IPC and sentenced to imprisonment for life and fine of Rs. 20,000/- with default stipulation. 3. As per the prosecution case, on 26.02.2017, the deceased Mikhail William had an altercation with his younger brother Fransis William and following such altercation, the appellant No. 1 Fransis William dealt a blow on the head of the deceased with a bamboo, as a result of which, the deceased sustained grievous injuries. Immediately he was taken to Teok hospital, however, he succumbed to the injuries. The wife of the deceased Smt. Makdali William (Pw-1) lodged an FIR, exhibit-1, on the basis of which, police registered Teok PS Case No. 79/2017 under section 302 IPC and commenced investigation. During investigation, the statements of the witnesses were recorded, inquest report on the body was prepared and the body of the victim was sent for post-mortem examination. Dr. Nitul Kr. Gogoi, (Pw-6) conducted the post-mortem examination. 4. As per the autopsy doctor, Pw-6, the deceased sustained the following injuries: a). Lacerated injury of size 2 cm x 2 cm x muscle deep over left temporal region underneath adjacent areas of scalp are contused with linear fracture of size 8 cm situated transversely over frontal bone over vertex. (b). Abrasion of size 2 cm x 2 cm over right forearm on outer aspect of wrist joint. In the opinion of the doctor, death was caused due to coma as a result of ante-mortem injury caused by blunt weapon which was homicidal in nature. 5. On conclusion of investigation, charge-sheet was laid against both the appellants, and eventually both the appellants stood trial. 6. In course of trial, learned Sessions Judge framed charges under section 302/34 IPC, to which the appellants pleaded not guilty. The prosecution examined as many as 7 (seven) witnesses in order to bring home the charge. Out of the seven witnesses examined by the prosecution, Pw-1, Pw-3, Pw-4 & Pw-5 claimed to be the eye witnesses of the occurrence. 6. In course of trial, learned Sessions Judge framed charges under section 302/34 IPC, to which the appellants pleaded not guilty. The prosecution examined as many as 7 (seven) witnesses in order to bring home the charge. Out of the seven witnesses examined by the prosecution, Pw-1, Pw-3, Pw-4 & Pw-5 claimed to be the eye witnesses of the occurrence. Pw-2 was a reported witness and the rest were the official witnesses, being the Doctor and the Investigating officer. 7. Pw-1, the wife of the deceased deposed that both the appellants who were the brothers' of the deceased came to their house and picked up quarrel with the victim. She further stated that during the quarrel, the appellant No. 1 Fransis William hit on the head of the deceased with a split bamboo. She also stated that the appellant No. 2 Nirmal William caught the deceased from backside in order to help Fransis. During cross-examination she stated that the quarrel started between them on trivial matter. She further stated in cross-examination that they did not have any quarrel with the appellant No. 2 Nirmal William who, according to Pw-1, came to their house from the church in order to take tea. It was also elicited during her cross-examination that the deceased also tried to attack the appellant Fransis William. 8. Pw-3 Mukta William testified that hearing hue and cry on the front side of the house, she came out and saw quarrel between the deceased and the accused persons. According to her, both the appellants were holding stick in their hands. She also stated that later on, Fransis William brought a dao but her husband snatched the dao from Fransis. According to her, Nirmal pushed the deceased on the ground and in the meantime the appellant Fransis brought one wooden stick and hit the deceased on his head. 9. Pw-4 Willson William also deposed that hearing hue and cry in the house of the appellant No. 1, he went there and found that both the accused persons as well as the deceased were engaged in quarrel with each other. All these persons have 'dao', 'lathi' and 'kotari' in their hands. He tried to intervene and disperse them but could not succeed. All these persons have 'dao', 'lathi' and 'kotari' in their hands. He tried to intervene and disperse them but could not succeed. He also stated, that in the meantime, the deceased fell into a "nala" (drain) and at that point of time accused Nirmal caught him and pressed his neck and the other accused person assaulted the deceased with a lathi on his head. 10. Pw-5 stated that hearing hue and cry from the house of the accused persons he went there and tried to stop the quarrel between the accused and the deceased. He further stated that when the deceased tried to come to his house, the accused Nirmal caught him by his neck and the accused Fransis assaulted the deceased on his neck with a piece of wood and thereafter both the accused persons had fled away from the scene. 11. On the basis of the above evidence, learned Sessions Judge convicted both the appellants under section 302/34 IPC and awarded sentence as indicated above. 12. Learned Amicus Curiae submits that there was no evidence to record the conviction of the appellant Nirmal William even with the aid of section 34 IPC and as such, the conviction and sentence of the appellant Nirmal William warrants interference by this Court. Learned Amicus Curiae further contends that on the facts and circumstances of the case, even the appellant Fransis William could not be convicted under section 302 IPC, inasmuch as, the intention to cause death was totally absent. Learned Addl. PP supporting the impugned judgment contends that prosecution has proved the charge against the appellant beyond reasonable doubt and therefore, no interference with the conviction and sentence of the appellants is called for. 13. We have considered the submissions made by the learned counsel and also scanned the evidence brought on record. 14. On our assessment of the evidence, we find that Pw-1 the wife of the deceased though, implicated both the appellants while deposing in Court, she did not mention the name of the appellant Nirmal William in the FIR, which was lodged by herself. We further notice that in her previous statement recorded under section 161 Cr.P.C., also she did not implicate the appellant Nirmal William. The Pw-2 deposed that immediately after the occurrence Pw-1 came to her house and told, that Fransis William killed her husband. We further notice that in her previous statement recorded under section 161 Cr.P.C., also she did not implicate the appellant Nirmal William. The Pw-2 deposed that immediately after the occurrence Pw-1 came to her house and told, that Fransis William killed her husband. Though pw-2 was a reported witness, his testimony assumes significance as regards involvement of the appellants, reason being that the eye witness (Pw-1) reported him about the occurrence immediately after the occurrence. What therefore transpires from the evidence of Pw-2 is that for the first time in Court, she sought to implicate the appellant Nirmal William, by saying that Nirmal caught the deceased from backside to help the appellant No. 1. During examination under section 313 Cr.P.C., the appellant, Nirmal explained the above evidence of the Pw-1 and stated, that he hold the victim for lifting him. It is to be borne in mind that the purpose and object of the examination under section 313 Cr.P.C., is to enable the accused to explain the incriminating evidence brought against him. Having regard to the evidence of the Pw-1 and the facts and circumstances, under which the occurrence took place and that the victim and accused Fransis William both were his brothers, the explanation given by the appellant to the evidence of the Pw-1 that Nirmal held the victim from backside seems to be quite reasonable and deserves to be accepted. 15. Although, Pw-3 stated in his evidence that Nirmal William pushed the deceased to the ground and thereafter the appellant Fransis William brought a stick and hit on his head, no other witness including the Pw-1, wife of the deceased ever stated that Nirmal William pushed the deceased to the ground. Pw-4 stated that the during the course of quarrel, the deceased fell down in the drain and at that point of time the accused Nirmal William pressed his neck and the other accused hit him with a lathi. He also stated that both the accused persons and victim were armed with 'dao', 'lathi' &'kotari' etc in their hands. None of Pw-1, Pw-3 or Pw-5 stated that both the parties were armed with such weapons. Although Pw-4 & Pw-5 have stated that the quarrel took place in the house of the appellant, the Pw-1 wife of the deceased deposed that the occurrence took place in her house, where the accused persons came. None of Pw-1, Pw-3 or Pw-5 stated that both the parties were armed with such weapons. Although Pw-4 & Pw-5 have stated that the quarrel took place in the house of the appellant, the Pw-1 wife of the deceased deposed that the occurrence took place in her house, where the accused persons came. It was also stated by Pw-1, that the appellant No. 2 Nirmal came to her house from the church to take tea and he had no quarrel with them. The genesis of the occurrence as deposed by Pw-4 & Pw-5 implicating both the appellants seems to be grossly inconsistent with the testimony of Pw-1 & Pw-3. Though Pw-4 deposed that deceased fell in the "nala" (drain), we find no drain at the place of occurrence, in the sketch map (Exhibit-4). The categorical evidence of the Pw-1 wife of the deceased and Pw-3 that occurrence took place in the house of the deceased and the contradiction in the oral testimony of Pw-4 & Pw-5 as well as the place of occurrence as shown in the sketch map, in our considered opinion raises serious doubt about the claim of Pw-4 & Pw-5 being eye witness of the occurrence. Be that as it may, even if the oral testimony of Pw-4 & Pw-5 is not taken into consideration, the oral testimony of the Pw-1 coupled with the evidence of Pw-2 and Pw-3 clearly established that appellant Fransis William inflicted the injury to the deceased by hitting on his head. The prosecution case as regards the appellant No. 1 inflicting injuries to the deceased on his head with a 'lathi' (stick) is further reinforced by the medical evidence. Thus the unshaken oral evidence of Pw-1, Pw-2 & Pw-3 coupled with the medical evidence, in our considered view, leaves no room for doubt that the appellant Fransis William inflicted injury to the victim on his head, which led to his death. 16. So far the involvement of the appellant Nirmal is concerned, as already indicated above, Pw-1 the vital witness of the case and wife of the deceased sought to implicate him for the first time in Court, inasmuch as, in her previous statement before investigating officer as well as in the FIR, she never implicated the appellant Nirmal. 16. So far the involvement of the appellant Nirmal is concerned, as already indicated above, Pw-1 the vital witness of the case and wife of the deceased sought to implicate him for the first time in Court, inasmuch as, in her previous statement before investigating officer as well as in the FIR, she never implicated the appellant Nirmal. Pw-1 categorically stated that the appellant No. 2 Nirmal William came to their house from the church for taking tea and thereafter the other accused/appellant No. 1 Fransis came and picked up quarrel. She also stated that they had no quarrel with Nirmal. What is evident from the oral testimony of Pw-1 is that Nirmal did not come to the place of occurrence with the appellant Fransis, inasmuch as, he was already there and he came only to take tea. Thus the evidence, that appellant Nirmal was already there in the house of the victim, and absence of any reliable evidence, that he took part in assaulting the victim, as there was only a single blow given by William Fransis, also rule out the existence of any common intention in the sense of prior meeting of minds between the two appellants. As already indicated above, Nirmal was implicated for the first time in Court. In view of the above facts and circumstances, in our considered view, prosecution evidence falls short of proving the involvement of the appellant Nirmal beyond reasonable doubt and as such, Nirmal was at least entitled to the benefit of doubt. Therefore, in our considered opinion, the conviction and sentence of the appellant Nirmal cannot be sustained. 17. The injury sustained by the victim as revealed from the medical evidence, as well as the testimony of the ocular evidence was that there was only one injury on the head caused by blunt object. Evidently, both the accused and the victim were brothers and initially quarrel took place on trivial matter. It was also in the evidence that the victim himself tried to assault the appellant Fransis William and in course of such quarrel and mutual fight, the appellant Fransis William assaulted the victim by giving a single blow with a split bamboo. Evidently, both the accused and the victim were brothers and initially quarrel took place on trivial matter. It was also in the evidence that the victim himself tried to assault the appellant Fransis William and in course of such quarrel and mutual fight, the appellant Fransis William assaulted the victim by giving a single blow with a split bamboo. All these facts and circumstances under which the appellant Fransis William inflicted the injury on the head of the deceased as well as the weapon (bamboo) of offence speaks loud and clear that there was no intention to cause death nor there was any pre-meditation on the part of the appellant. Had the appellant harboured any intention to cause death, he would not have left the victim by giving a single blow that too, with an object like split bamboo. Having regard to the weapon used, it is also difficult to hold that the appellant had any intention to cause such bodily injury as is likely to cause death. Evidently, the injury was inflicted in course of quarrel and mutual fight, at the heat of passion. In view of the above facts and circumstances of the case, in our considered view the conviction of the appellant Fransis under section 302 IPC cannot be sustained. Accordingly, we set-aside the conviction of the appellant under section 302 IPC, instead, we convict him under section 304 Part-II IPC. As already indicated above, the evidence on record was inadequate to convict the appellant Nirmal William, we acquit him of the charge under section 302 IPC on benefit of doubt. 18. Having regard to the facts and circumstances of the case under which the injury was inflicted by the appellant Fransis William to the victim causing his death, in our considered view, the sentence of Rigorous imprisonment for 5 (five) years under section 304 (Part-II) IPC, would meet the ends of justice. Accordingly, we sentence the appellant Fransis William to undergo Rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 10,000/- in default to undergo simple imprisonment for 6 (six) months. 19. Accordingly, the appeal qua the appellant Fransis William is partly allowed. The appeal qua the appellant Nirmal William is allowed and the conviction and sentence awarded to him by the learned Sessions Judge under section 302 IPC is set-aside. 10,000/- in default to undergo simple imprisonment for 6 (six) months. 19. Accordingly, the appeal qua the appellant Fransis William is partly allowed. The appeal qua the appellant Nirmal William is allowed and the conviction and sentence awarded to him by the learned Sessions Judge under section 302 IPC is set-aside. The appellant Nirmal William be released forthwith, if not required in any other case. The appeal stands disposed of in terms as indicated above. 20. Appreciating the assistance rendered by Ms. B. Sarma, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs. 7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Sarma. 21. Send down the LCR along with a copy of this judgment.