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2020 DIGILAW 16 (GAU)

Lakheswar Tanti v. State of Assam

2020-01-06

MANISH CHOUDHURY, MIR ALFAZ ALI

body2020
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. U.J. Saikia, learned amicus curiae for the appellant and Ms. S. Jahan, learned Addl. P.P. Assam for the respondents as well as Mr. A.K. Saikia, learned counsel appearing for the informant. 2. This appeal is directed against the judgment and order dated 12.07.2018 passed by the learned Sessions Judge, Jorhat in Sessions Case No. 83(J-J)/2017. By the said judgment, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 20,000/- with default stipulation. 3. As per the prosecution case, on 12.01.2017, at about 2.30 PM, the appellant had heated argument with his father (the victim) and in course of such argument, he inflicted injuries to the deceased with a hoe, which led to his death. The FIR (Ext. 3) was lodged by PW-2, wife of the deceased, on the basis of which, police registered Jorhat P.S. Case No. 89/2017 under Section 302 IPC and commenced investigation. During investigation, police recorded the statements of the witnesses, prepared inquest report and sent the body of the deceased for postmortem examination. The postmortem examination was conducted by Dr. Swaraj Phukan (PW-5). 4. The Autopsy doctor (PW-5) found the following injuries: "(1) chop injury of size 13 cm x 2 cm, oral cavity deep present in the front of face, 3 cm below the lower lip. Skin, muscles, teeth and bone are cut transversely. Margins at the wound are clear cut. Clotted blood adherent to the injury which resist washing under tap water. (2) Chop wound size 12 cm x 3 cm is present over the front of the upper part of neck, at the level just above the thyroid cartilage. Skin, muscles, trachea esophagus, vessels and nerves are cut transversely. Margins of the wound are clear cut. Clotted blood adherent to the injury which resist washing under tap water. (3) Chop wound of size 6 cm x 5 cm x bone deep is present over the right cheek, extending to the side of upper part of neck. Skin, soft tissues, vessels, nerves ad bone are cut. Margins of the wound are clear cut and clotted blood which resist washing under tap water adherent to the wound margins. (3) Chop wound of size 6 cm x 5 cm x bone deep is present over the right cheek, extending to the side of upper part of neck. Skin, soft tissues, vessels, nerves ad bone are cut. Margins of the wound are clear cut and clotted blood which resist washing under tap water adherent to the wound margins. (4) Chop wound of size 6 cm x 1 cm x soft tissue depth is present over the right temporal region of the scalp with underlying contusion of the right temporoparietal region." In the opinion of the doctor, the death of the victim was caused due to shock and hemorrhage following the injuries sustained. All the injuries were ante-mortem and caused by sharp cutting heavy weapon and were homicidal in nature. 5. On completion of the investigation charge sheet was laid against the present appellant, who eventually stood trial. 6. In course of trial, charge was framed under Section 302 IPC, which was abjured by the appellant. In order to establish the charges, the prosecution examined as many as 8 witnesses. On appreciation of evidence, learned Sessions Judge convicted the appellant under Section 302 IPC and awarded sentence as indicated above. 7. We have considered the submissions made by the learned counsel for the appellants and the learned Addl. P.P. Assam, for the respondents and also scrutinized the evidence and materials brought on record. 8. Evidently, there was no direct evidence of the occurrence and the learned trial court basically relying on the circumstantial evidence recorded conviction of the appellant. Out of the 8 prosecution witnesses, PW-2, the informant deposed that immediately before the occurrence, she went to the house of her daughter across the road to fetch coconut and at that time, the deceased and the accused were present at the house. When she came back with the coconut, she noticed blood on the floor of the house. She also stated to have seen the accused holding a hoe in his hand, which was seized by police later on by Ext. 1, seizure list. She further stated that the deceased and her son used to quarrel with each other over trivial matters. However, during cross examination, she stated that she was not aware as to how and under what circumstances, the deceased was killed. 9. PW-1 was a post occurrence witness. 1, seizure list. She further stated that the deceased and her son used to quarrel with each other over trivial matters. However, during cross examination, she stated that she was not aware as to how and under what circumstances, the deceased was killed. 9. PW-1 was a post occurrence witness. According to him, having come to know about the occurrence, he came and found that the victim lying dead with injuries. He was also a witness to the seizure list (Ext. 1), by which the police seized the hoe. PW-3 also came after the occurrence. According to him, police seized the blood stained hoe from the place of occurrence vide Ext. 1. 10. PW-4 and PW-7 were declared hostile by the prosecution. It is the settled position, that the oral testimony of the hostile witnesses is not required to be brushed aside merely because of the prosecution declaring them hostile or disowning their evidence, and the oral testimony of hostile witnesses to the extent, supporting other prosecution witnesses can be taken into consideration. However, we find nothing in the evidence of PW-4 and PW-7, which could be of any assistance to the prosecution. 11. PW-6, the Investigating Officer, deposed that on the basis of the statement of the accused, he seized the blood stained hoe and sent the same for forensic examination. PW-8, the Scientific Officer, Forensic Science Laboratory, Guwahati testified that the blood stained hoe, which was sent for serological test gave positive test of human blood. During examination under Section 313 Cr.P.C. though, the accused/appellant denied his involvement in the offence, he has admitted that at the time of the occurrence, he was present with the deceased. On the basis of the above evidence, learned trial court recorded conviction of the appellant under Section 302 IPC and awarded sentence. 12. Learned amicus curiae has not seriously contested the finding of the learned Sessions Judge that the accused/appellant was the perpetrator of the offence. On the basis of the above evidence, learned trial court recorded conviction of the appellant under Section 302 IPC and awarded sentence. 12. Learned amicus curiae has not seriously contested the finding of the learned Sessions Judge that the accused/appellant was the perpetrator of the offence. However, the contention of the learned amicus curiae is that there was quarrel and heated argument between the accused and the victim and in course of such quarrel, the accused/appellant inflicted injuries at the heat of passion and therefore, pre-meditation and intention to cause death was totally absent and as such, the accused could not have been convicted under Section 302 IPC, at best a conviction under Section 304 Part-II could be recorded, submits, learned amicus curiae. Learned Addl. P.P. also very fairly conceded to the above submission that having regard to the facts and circumstances, under which the occurrence took place, the act of the accused/appellant may not come within the definition of murder under Section 300 IPC. 13. We notice from the oral testimony that there was clinching evidence that immediately before the occurrence, the deceased and the appellant were present at the place of occurrence i.e. the house of the victim and there was none except the victim and the accused. This fact was also admitted by the appellant during examination under Section 313 Cr.P.C. It was also proved that PW-2, mother of the accused went to the house of her daughter leaving the accused and victim in the house and while she came back immediately from the house of her daughter, which was just across the road, she found the deceased with injury and the accused with a hoe in his hand. The recovery of weapon of the offence has also been proved by PW-2, PW-3 and PW-6. Evidently, the seized weapon of offence with blood stain was sent for serological test. The FSL report gave positive test for human blood. The above evidence crystallizes that the circumstances relied by the learned trial court were fully established and the chain of circumstances was also complete to prove that it was none, but the accused/appellant who had committed the offence and therefore, we do not find any reason to differ with the finding of the learned trial court to the extent that the accused/appellant was the perpetrator of the offence. 14. 14. Evidently, the deceased was the father of the accused/appellant and there was quarrel and heated argument between the deceased and the accused/appellant and in course of such quarrel and heated argument, the accused/appellant inflicted injuries at the heat of passion. The weapon used was also a normal agricultural instrument available in every house of the village. The above facts, in our considered view speaks loud and clear that the intention to cause death or any pre-meditation was absent in the instant case. However, though, there was no any pre-meditation or intention to cause death on the part of the appellant, from the nature of injury, it is difficult to hold that the accused/appellant did not have intention to cause such bodily injury as it is likely to cause death. Thus, having taken note of all the facts and circumstances, more particularly the absence of intention to cause death and pre-meditation, and that the injury was inflicted in course of quarrel at the heat of passion, we are of the considered opinion that the appellant could not have been convicted for murder under Section 302 IPC and as such the conviction and sentence of the appellant under Section 302 IPC is not sustainable. Accordingly, we set aside the conviction under Section 302 IPC, instead, convict the accused/appellant under Section 304-I of the IPC. 15. Having modified the conviction, we are of the considered view that sentence of rigorous imprisonment for 10 years would meet the ends of justice. Accordingly, we sentenced the accused/appellant to undergo rigorous imprisonment for 10 years and fine of Rs. 20,000/- in default, to suffer simple imprisonment for 6 months. 16. We take note of the fact that no order for compensation in terms of Section 357-A Cr.P.C. has been passed by the learned Sessions Judge. Therefore, we direct that a copy of this judgment and order be placed before the Legal Service Authority, which shall consider necessity of providing compensation to the dependent of the victim, if any, in terms of Victim Compensation Scheme and award the compensation, as per law. 17. The Appeal is disposed of accordingly. 18. Send down the LCR. 19. Appreciating the assistance rendered by Mr. U.J. Saikia, learned Amicus Curiae, I hereby provide that he will be entitled to Rs. 17. The Appeal is disposed of accordingly. 18. Send down the LCR. 19. Appreciating the assistance rendered by Mr. U.J. Saikia, learned Amicus Curiae, I hereby provide that he will be entitled to Rs. 7500/- which shall be paid to her by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment.