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2020 DIGILAW 31 (GAU)

Somudra Moran v. State of Assam

2020-01-08

HITESH KUMAR SARMA, SUMAN SHYAM

body2020
JUDGMENT : Hitesh Kumar Sarma, J. 1. This Criminal Appeal (J) No. 108/2018, has been preferred by accused-appellant Sri Somudra Moran, against the judgment and order, dated 04.09.2018, in Session Case No. 164(T)/2016, passed by the learned Sessions Judge, Tinsukia, convicting and sentencing him for offence punishable under Section 302 of the IPC to undergo imprisonment for life and to pay a fine of Rs. 10,000/-, and in default of payment of fine, to undergo imprisonment for 6 (six) months. 2. The case for the prosecution, as unfolded during the trial, is that at about 8:30 pm on 07.08.2016, the accused-appellant came back home in an inebriated condition and after some altercation with his father/deceased dealt a blow on the head of the deceased with an iron rod causing his death. 3. On the above facts, the elder brother of the accused-appellant (another son of the deceased) Sri Durgeswar Moran lodged the FIR, vide Ext. 1, with the Tongana Police Station which registered a case, being Tongana P.S. Case No. 13/2016 under Section 302 of the IPC, investigated into it, collected evidence, and finally, on completion of investigation laid the charge-sheet against the accused-appellant under Section 302 of the IPC. 4. After exhausting all required legal formalities, the accused-appellant was charged with commission of an offence under Section 302 of the IPC and while the charge was read over and explained to him, he pleaded innocence. Therefore, the trial. 5. During the trial of the case, the prosecution examined as many as 12 (twelve) witnesses. They were cross-examined by the defense. In the examination under Section 313 of the Cr.PC, while the incriminating evidence was brought to his notice, the accused denied the same. The defense also did not adduce any evidence. 6. We have heard Mr. U Das, learned Amicus Curiae, appearing for the accused-appellant as well as Mr. M Phukan, learned Additional Public Prosecutor, appearing for the State respondent. 7. We have also perused the records of the learned trial court and the evidence of the prosecution witnesses, including the impugned judgment. 8. On perusal of the entire evidence on record, it is found that there is no eye-witness to the occurrence and the entire prosecution case rests on circumstantial evidence. We have scanned the evidence on record. 9. 7. We have also perused the records of the learned trial court and the evidence of the prosecution witnesses, including the impugned judgment. 8. On perusal of the entire evidence on record, it is found that there is no eye-witness to the occurrence and the entire prosecution case rests on circumstantial evidence. We have scanned the evidence on record. 9. The PW 1, Sri Durgeswar Moran, is the informant in this case and witness to the inquest of the dead body of the deceased, vide Ext. 2. He noticed injury on the back of the head of the deceased. He is also the witness to the seizure of the iron rod, vide seizure list, marked Ext. 3, wherein he has put his signature as witness, vide Ext. 3(1). The said seized iron rod has been exhibited in the court, vide Material Ext. 1 and he deposed that he meant the said Material Ext. 1 to be the iron rod used in the commission of the offence. He admitted that he did not witness the occurrence and he was at Digboi and on receipt of telephone call from his mother(PW 2) and wife of the deceased (PW 3), he came home back, after the occurrence. 10. The PW 2, Smti Sailyabathi Moran, is the mother of the accused-appellant and wife of the deceased. It has come out from her evidence that her son/the accused-appellant came back home in a drunken condition as usual and started arguing with her husband/deceased. The deceased told her to give him food and she accordingly served food. At the time of serving the food, the deceased/husband was sitting in the verandah and at that time, the accused-appellant started arguing with him. After sometime she found her husband lying dead near the tube well and Samudra leaving the place of occurrence. Further evidence of the PW 2 is to the effect that the accused-appellant used to engage himself with frequent quarrels with her husband/deceased after taking liquor and just before the occurrence, the accused-appellant demanded money, following which there took place a quarrel between the accused-appellant and the deceased. She also specifically stated that her husband was killed with some iron material and she informed the PW 1 about causing of death of her husband by the accused-appellant. She has admitted that her statement under Section 164 of the Cr.PC was recorded by the Magistrate, vide Ext. She also specifically stated that her husband was killed with some iron material and she informed the PW 1 about causing of death of her husband by the accused-appellant. She has admitted that her statement under Section 164 of the Cr.PC was recorded by the Magistrate, vide Ext. 4. She is very specific in her evidence while stating that she had stated before the Magistrate that on 07.08.2016, at about 7:30 pm while she was at her house, she heard Samudra (accused-appellant) was shouting and standing with a lathi in his hand and seeing her, he had thrown the lathi towards her, following which this witness had hid herself behind the bushes and saved her life. Thereafter, the PW 2 started to prepare rice for her husband/deceased. Her husband/deceased asked the accused-appellant as to what for he was shouting, but the accused-appellant got angry. Thereafter, her husband went near the tube-well located behind their house and Samudra (accused-appellant) followed him and exactly at that time, she heard a sound and when she reached near the tube well, she saw her husband lying on the ground. She has admitted, in her evidence, that in her statement before the learned Magistrate, she has stated that the accused-appellant had something in his hand although she could not remember whether it was an iron rod or something else. The accused-appellant also caught her and throttled her neck although somehow she rescued herself and thereafter the accused-appellant went out of the house, and while leaving, he uttered the word "Katam". She has admitted that the statement given by her before the learned Magistrate to be true. In her cross-examination, the defence could not elicit anything to discredit her such evidence. What has come out from her cross-examination is that she did not witness the accused-appellant causing injury to her husband/deceased, resulting in his death. 11. The PW 3, Smti. Sabita Moran is the wife of the accused-appellant and daughter-in-law of the deceased. Her evidence is that on the date of occurrence, her husband/the accused-appellant came to home at about 7:30 pm in a drunken condition and started shouting and her father-in-law/deceased asked him as to why he was shouting. Thereafter, the deceased/father-in-law went near the tube-well to wash his hands before taking his dinner. Her evidence is that on the date of occurrence, her husband/the accused-appellant came to home at about 7:30 pm in a drunken condition and started shouting and her father-in-law/deceased asked him as to why he was shouting. Thereafter, the deceased/father-in-law went near the tube-well to wash his hands before taking his dinner. The accused-appellant replied to the deceased that he was not making any noise and went near the latrine of the house and took out an iron material from there and hit the deceased/her father-in-law on his head from behind. Hearing the sound, she came out and saw that her father-in-law was lying on the ground and on seeing her, the accused-appellant threw away the iron material and went out of the house saying "Katam". She has also stated that her husband/the accused-appellant used to quarrel regularly, sometime for money, sometime for food and sometime on other issues. She noticed injury on the scull of the deceased. She also deposed that her father-in-law died. Then, she informed the matter to the Police over phone and also the same to the PW 1. She has also got her statement recorded under Section 164 of the Cr.PC by the learned Magistrate. She has also exhibited the Material Ext. 1 to be the iron material by which the accused-appellant assaulted the deceased. In her cross-examination, nothing could be elicited by the defence to discredit her evidence adduced in examination-in-chief. The defence only made certain suggestions to which she replied in the negative. In the absence of any defence evidence to prove the suggestions made to PW 2 and PW 3. No defence evidence had been adduced. Therefore, the suggestions made to PW 2 and PW 3 are not of any significance so far the credibility of the evidence of the PW 2 and PW 3 is concerned. 12. The PW 4, is Dr. Biswajit Saikia, who performed the post-mortem examination of the dead body of the deceased on 08.08.2016 at Tinsukia Civil Hospital and found as follows:- "Medium built, 5 ft. 6 inches height, fair complexion, wearing a one Dhoti and underwear. Rigor mortis present. Injuries: 1. Lacerated injury over left temporal and left parietal scalp of size 30 x 10 x 2 cm. 2. Fracture of left temporal and left parietal bone. 3. Bruises present on left temporal and left parietal scalp. 6 inches height, fair complexion, wearing a one Dhoti and underwear. Rigor mortis present. Injuries: 1. Lacerated injury over left temporal and left parietal scalp of size 30 x 10 x 2 cm. 2. Fracture of left temporal and left parietal bone. 3. Bruises present on left temporal and left parietal scalp. Thorax- Pleurae, laryax and trachea, right lung, left lung and pericardium-congested. Heart and vessels- intact and healthy. Abdomen:- Peritonoum, mouth, pharynx and oesophagus- congested. Stomach contained undigested food and fluid. Small intestine contained digested food and fluid and large intestine contained faecal matter and gases. Membrane congested. Brain- haematoma present. Lacerated injury of brain seen on the left temporal and left parietal area. Liver, spleen and kidneys were congested". He opined that death was due to coma as a result of injury to the cranium, ante mortem in nature, caused by blunt force impact and the approximate time since death was 12 to 24 hours. 13. The PW 5, Sri Girish Ch. Moran, is heard stating in his evidence that while he was sleeping he heard somebody shouting from the house of the accused-appellant and then he went to their house. Then, the PW 2 was heard shouting that her son, Samudra (the accused-appellant) had killed her husband. He had seen the dead body lying on the backside verandah of the house and also noticed one iron rod lying by the side of the dead body. There was also suggestion made by the defence to this witness that he has deposed falsely to which he answered in the negative. 14. The PW 6, Sri Sarba Moran, deposed that the deceased was his elder brother and the accused-appellant is the son of the deceased. He got the information, over phone, about the death of the deceased caused by the accused-appellant from the PW 2. He came to the house of the accused-appellant and found the dead body of the deceased lying by the side of the tube well. He also noticed injury on his head and one iron rod lying near the dead body which was seized in his presence by the Investigating Officer, vide Ext. 3. He is a witness to the same vide his signature marked as Ext. 3(2). There is no such evidence brought out in his cross-examination to discredit his such evidence. 15. He also noticed injury on his head and one iron rod lying near the dead body which was seized in his presence by the Investigating Officer, vide Ext. 3. He is a witness to the same vide his signature marked as Ext. 3(2). There is no such evidence brought out in his cross-examination to discredit his such evidence. 15. The PW 7, Sri Manab Moran, who came to the place of occurrence after hearing shouting in the house of the deceased to the effect that someone had killed the deceased. He has seen the dead body near the tube well on the back side of the house of the accused-appellant and also saw injury on the back side of the head of the deceased. He also noticed one iron rod lying near the dead body. He is also a witness to the seizure of the said iron rod, vide Ext. 3 wherein he had put his signature, vide Ext. 3(3). There is nothing in the cross-examination of this witness to discredit his evidence adduced in examination-in-chief. 16. The PW 8 is Sri Jayanta Moran. He is also the witness to the seizure, vide Ext. 3, who deposed that he was informed about the murder of the deceased by the accused-appellant by the PW 2. Then he went to the house of the accused-appellant and found the dead body of the deceased lying by the side of the tube well. He was told by the wife of the deceased (PW 2) that her son/the accused-appellant had committed the murder. She further told him that the accused-appellant had committed the murder of the deceased with a piece of angled piece iron which is normally used as a post for erecting fencing. The Police seized the said angled rod. He has proved the same to be Material Ext. 1 in the court. Nothing could be elicited in his cross-examination by the defence to discredit his evidence. 17. The PW 9 is Sri Haren Moran. According to him, he was informed by one Girin Moran that the accused-appellant had committed the murder of the deceased. He went to the place of occurrence and saw the dead body of the deceased lying in a pool of blood. Half of the dead body was inside the bathroom and the remaining part was outside the bathroom. According to him, he was informed by one Girin Moran that the accused-appellant had committed the murder of the deceased. He went to the place of occurrence and saw the dead body of the deceased lying in a pool of blood. Half of the dead body was inside the bathroom and the remaining part was outside the bathroom. In his cross-examination, he deposed that Police did not record his statement. He also denied that he has deposed falsely. 18. The PW 10 is Sri Hemo Neog, who is the witness to the seizure, vide Ext. 3 and Ext. 3(4) is his signature as witness. He had exhibited the Material Ext. 1 which was seized, vide Ext. 3, in his evidence. 19. The PW 11 is Sri Lalit Moran. After hearing that the accused-appellant has committed the murder of the deceased, he came to the house of the deceased and saw a gathering of people there, including policemen and the PW 2, i.e., the wife of the deceased. The PW 2 told him that the accused-appellant had committed the murder of her husband. The Police recovered one iron bar from the place of occurrence. While deposing in the court, on oath, he stated that he was not sure that the Material Ext. 1 is the iron bar which was seized by Police from the place of occurrence. 20. The PW 12 is the Investigating Police Officer. His evidence is of routine nature. He has narrated from receipt of the FIR till completion of the investigation. During his cross-examination, the defence only elicited, by way of contradiction, that the witness Smti Sailyabathi Moran (PW 2) did not stated before him that on the date of the incident her son, Samudra came in a drunken state and started arguing with her husband and also demanded money from him. Further contradiction is brought on record is in respect of the evidence of PW 3 (wife of the accused-appellant). According to him, the PW 3 did not state before him that she came out of the house and reached near the tube well and on seeing her, her husband had thrown away the iron material and that the accused had assaulted the deceased 3 (three) times with the iron material. 21. According to him, the PW 3 did not state before him that she came out of the house and reached near the tube well and on seeing her, her husband had thrown away the iron material and that the accused had assaulted the deceased 3 (three) times with the iron material. 21. From the above evidence on record, it appears that:- (i) The occurrence took place in the house of the deceased as well as the accused-appellant. At that point of time, the PW 2 and PW 3 were present in their house. There was no other witness. It has come out from the evidence of both these witnesses that the accused-appellant had come home back in an inebriated state and had arguments with the deceased and the deceased asked him as to what for he was shouting to which he answered that he was not shouting and then followed the deceased to near the tube well. (ii) The evidence of the PW 2 makes it clear that before the occurrence took place, i.e., causing the death of deceased, the accused-appellant attempted to throttle her and also had thrown a stick towards her although she somehow could save herself by hiding behind the bushes and such evidence is indicative of the fact that the accused-appellant, for whatever reason it may be, was extremely angry, otherwise in normal circumstances, he is not supposed to attempt to throttle his mother (PW 2). (iii) The evidence of PW 3, PW 6, PW 7, PW 8 and PW 10 makes it appear that the Material Ext. 1 which was allegedly used in the commission of the murder of the deceased was seized in their presence and they were witnesses to such seizure and they have exhibited the said iron rod, vide Material Ext. 1, in the court while adducing evidence. (iv) The evidence of the PW 2 that she had seen the accused-appellant taking something at his hand before committing the alleged offence and the fact that the PW 2 had also seen the accused-appellant carrying an iron rod leaves no doubt in the mind of this court, on a cumulative reading of the evidence on record, that the accused-appellant used the said Material Ext. 1 in the commission of the offence. 22. 1 in the commission of the offence. 22. So, it appears from the above evidence of the seizure witnesses, and particularly from the evidence of PW 2 and PW 3, who are respectively the mother and the wife of the accused-appellant, that immediately before the occurrence, the accused-appellant had some altercation/argument with the deceased and that he had carried something in his hands which can be linked to the seized iron rod and that after assaulting the deceased, he left the house of the deceased uttering the word "Kotom". Such evidence is more than clear to unerringly point that the accused-appellant is the person who had caused the death of the deceased. 23. We are also mindful of the fact that the most vital evidence in this case against the accused-appellant has been led by his mother and wife. We are also taken note of the fact that both the PW 2 and PW 3 admitted in their evidence that both of them had made statements under Section 164 of the Cr.PC, vide Exts. 4 and 5, before the learned Judicial Magistrate admitting further the contents of their such statements. This being the evidence of the PW 2 and PW 3, in the absence of any contradictions brought on record by the defence in their cross-examination or through the cross-examination of the Investigating Police Officer, the same appears to be reliable there being no reason to disbelieve the same. 24. The evidence-in-chief of the PW 2 and PW 3 is found to be consistent with their previous statements made under Section 164 of the Cr.PC. Such being the evidence on record and in view of the various circumstances indicated at Sl. Nos. (i) to (iv) in para 21 coupled with the uncontroverted evidence, vide Exts. 4 and 5, referred to above, this court has no hesitation to hold that the circumstances in the instant case constitute a chain from which the conclusion of guilt of the accused-appellant is fully established and the circumstances are consistent only with the hypothesis of guilt of the accused-appellant (Reference Hanumant -vs- State of Madhya Pradesh, reported in AIR 1953 SC 343). Therefore, the accused-appellant is held to have committed the death of the deceased. 25. Now, the question is as to whether the death of the deceased amounts to culpable homicide amounting to murder or of culpable homicide not amounting to murder. Therefore, the accused-appellant is held to have committed the death of the deceased. 25. Now, the question is as to whether the death of the deceased amounts to culpable homicide amounting to murder or of culpable homicide not amounting to murder. To understand the legal position of the matter, we have visited the Exceptions to Section 300 of the IPC which reads as follows:- "Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.-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's having taken undue advantage or acted in a cruel or unusual manner. Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 26. Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent." 26. The learned counsel for the accused-appellant referring to the sequence of events, leading to the death of the deceased, has submitted that even if the prosecution version that the accused-appellant had inflicted the fatal injury on the deceased, resulting in his death is believed to be true, yet the same was without any pre-meditation and without his knowledge that it was so imminently dangerous that in all probability it would cause such bodily injury likely to cause death of the deceased. There is no evidence on record to indicate that the accused-appellant had inflicted the single injury which is proved to be fatal resulting in the death of the deceased with knowledge or intention that he would have caused death of the deceased by inflicting that blow/injury. On the other hand, there is evidence that the accused had inflicted the injury on the deceased without pre-meditation and in the heat of passion upon a sudden quarrel. The accused-appellant could not be said to have taken undue advantage in causing the fatal injury to the deceased in view of the fact that the evidence reveals that he had, after the argument between himself and his father/deceased, followed his father to near the tube well and picked up the iron rod from the store near the bathroom and then inflicted the blow. Such evidence is indicative of the fact that at the heat of passion, he had picked up to assault his father/deceased with whatever he got around him and he was not equipped with such a weapon from before to cause injury to his father/deceased. 27. The learned Additional Public Prosecutor, Mr. M Phukan has, however, fairly agreed to the submission made by the learned Amicus Curiae that this is a fit case to hold the accused-appellant guilty of offence punishable under Section 304 Part-II of the IPC instead of Section 302 of the IPC. 28. That being so, in the considered view of this court, the Exception 4 to Section 300 of the IPC is found to be attracted in the case of the accused-appellant and therefore, he is held guilty of commission of an offence under Section 304 Part-II of the IPC. 29. 28. That being so, in the considered view of this court, the Exception 4 to Section 300 of the IPC is found to be attracted in the case of the accused-appellant and therefore, he is held guilty of commission of an offence under Section 304 Part-II of the IPC. 29. Thus, the conviction of the accused-appellant is converted from the offence punishable under Section 302 of the IPC to one under Section 304 Part-II of the IPC. Accordingly, considering the entire facts of the case, this court is of the view that punishment in the form of rigorous imprisonment for 10 (ten) years and fine of Rs. 10,000/-, and in default of payment of fine, simple imprisonment for 6 (six) months for commission of offence punishable under Section 304 Part-II of the IPC would meet the ends of justice. The accused-appellant is sentenced accordingly. 30. The period of custody of the accused-appellant at the investigation stage, during trial and after the judgment of the learned court below shall be set off against the substantive sentence imposed upon the accused-appellant. 31. The appeal is, accordingly, partly allowed. 32. Send down the LCR with a copy of this judgment. 33. This Court appreciates the assistance rendered by the learned Amicus Curiae, Mr. U Das and directs that an amount of Rs. 7,500/- be paid to him as honorarium for his assistance.