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2020 DIGILAW 78 (TRI)

Dilip Das v. State of Tripura

2020-06-22

AKIL ABDUL HAMID KURESHI, ARINDAM LODH

body2020
JUDGMENT : Arindam Lodh, J. 1. The instant appeal mounts challenge to the judgment and order of conviction and sentence dated 17.05.2012 passed in ST 27(ST/U) of 2011 by learned Sessions Judge, South Tripura, Udaipur. By the impugned decision, the convict-appellant stands convicted under Section 302 of the IPC and has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5000/- in default to suffer further rigorous imprisonment for six months. 2. We have heard Mr. R. Sinha, learned counsel appearing for the appellant and Mr. Ratan Datta, learned RR appearing for the State-respondent. 3. The skeletal facts portraying the prosecution case originated from a complaint lodged by Chandra Mohan Das, the husband of the deceased-Kajal Das inter alia, stating that his wife was murdered by one of his sons, namely, Dilip Das, the appellant herein, on 10.12.2010, at about 7.00 O'clock. FIR number 186 of 2010 dated 10.11.2010 was registered by the Officer-in-charge of Kakraban Police Station and investigation was set on motion accordingly. 4. Background and Relevant Facts: 4.1. The deceased-Kajal Das is the second wife of the informant, Chandra Mohan Das. There is inimical relation between the appellant and the deceased. There is a disclosure statement made by the appellant, wherefrom it is revealed that his father Chandra Mohan Das had mortgaged their homestead land and took loan of Rs. 1,00,000/-. The money was kept in the bank in the credit of his stepmother. The appellant sought for Rs. 500/- from his stepmother but she scolded him while refusing to pay. The appellant had given statement that on the fateful day, in the evening, at about 6.00/6.30 hours, while his stepmother was working near the oven, he gave blows to her head by one branch of gamai tree which was kept near the oven. He had further disclosed that he had kept the said branch of tree near the oven after giving blows. After killing his mother, he, on his own, went to the Kakraban Police Station and had made the disclosure statement (Exbt-8). On his way to Kakraban police station he confessed the fact of killing of his mother to one Rajib Das (P.W.-2). 5. Being committed, learned Sessions Judge, South Tripura, Udaipur framed charge against the appellant under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. On his way to Kakraban police station he confessed the fact of killing of his mother to one Rajib Das (P.W.-2). 5. Being committed, learned Sessions Judge, South Tripura, Udaipur framed charge against the appellant under Section 302 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried. Prosecution examined 12 witnesses to establish the charge. After conclusion of the recording of the evidence and having heard the learned counsel for the parties, learned Trial Judge held the appellant guilty for committing offence under Section 302 of IPC and convicted and sentenced the appellant as afore-stated. 6. Evidence: 6.1. At the very outset, we have perused the deposition of P.W.-2, Rajib Das. He deposed that Dilip Das, the appellant herein was known to him. On the day of occurrence in the evening, while he was proceeding through the road he met the appellant on the way and on his query as to where Dilip was going, the appellant told him that he had given a good lesson to his mother and was going to the police station. 6.2. P.W.-1 is the police constable and material witness. 6.3. P.W.-3, Smt. Arati Bala Das is the neighbour of the adjacent house. She deposed that just after the occurrence, the daughter of Chandra Mohan Das called her and told that her mother was lying with bleeding injuries. When she rushed to their house, she found Kajal, the victim was lying with bleeding injuries. On her alarm, adjacent people, Sajal, Kanti and Jivan had arrived there and shifted Kajal to Hospital. She further deposed that before the incident she found Dilip present in the house. But, after the incident when she went to their house she did not find Dilip available in the house. In her cross examination, nothing material has been elicited. 6.4. P.W.-4 is the scribe of the ejahar. 6.5. P.W.-5, Dr. Mrinal Das conducted the post-mortem examination over the dead body of the deceased on 11.11.2010 at about 8.45 a.m. He found deep lacerating injuries on the head of the deceased. 6.6. P.W.-6, Dr. Nibedita Sarkar assisted P.W.-5 in conducting the post-mortem examination report. 6.7. P.W.-7, Sri Chandramohan Das is the informant of the case. He deposed that the appellant often used to demand money and he used to pay. He further deposed that the appellant's relation with his second wife was not good. 6.6. P.W.-6, Dr. Nibedita Sarkar assisted P.W.-5 in conducting the post-mortem examination report. 6.7. P.W.-7, Sri Chandramohan Das is the informant of the case. He deposed that the appellant often used to demand money and he used to pay. He further deposed that the appellant's relation with his second wife was not good. On the fateful day, he was in the market and he received information from one Kanti Das that his wife was brought to Kakraban PHC and she was dead. He went there and from local people he heard that after killing his wife, the appellant straightaway went to the police station. Accordingly, he lodged the FIR. 6.8. P.W.-8, Kumari Sipra Das (11 year) is the step-sister of the deceased. She deposed that on the date and time of occurrence, she had been prosecuting her study along with her sister and her mother Kajal was cooking food outside the hut. Her father was not at home. After a while she came out of the hut and found her mother lying near the "chola" (oven) and blood was oozing out from her ear and nose. She called on her aunt when neighbouring people also arrived. Her mother was immediately shifted to hospital where she died. 6.9. P.W.-9, Sushil Das is the neighbour. He deposed that in his presence, the police brought Dilip Das back to his house as the appellant had surrendered. In his presence the appellant admitted to have killed his step mother Kajal. The appellant also saw a branch of a gamai tree which was lying near the oven outside the hut. The police seized the branch of the tree and prepared a seizure list. He put his signature on the said seizure list(exbt-5). P.W.-9 also identified the branch of the tree (M.O.-1). No material elicited in his cross examination. 6.10. P.W.10, Shyamal Das deposed that in their presence, the appellant showed a branch of tree which was lying near an "oven" by which he inflicted blows on the deceased-Kajal which was seized. He identified his signature (Exbt. 5/1) on the seizure list and the branch of tree (M.O. 1). 6.11. P.W.-11, Nirod Das identified the dead body. 6.12. 6.10. P.W.10, Shyamal Das deposed that in their presence, the appellant showed a branch of tree which was lying near an "oven" by which he inflicted blows on the deceased-Kajal which was seized. He identified his signature (Exbt. 5/1) on the seizure list and the branch of tree (M.O. 1). 6.11. P.W.-11, Nirod Das identified the dead body. 6.12. P.W. 12, Sri Rahul Alam is the Officer-in-Charge of the Kakraban P.S. He deposed that while he was on duty, one Medical Officer of Kakraban PHC informed him over telephone that one dead body was brought under suspicious circumstance. He entered the fact in the G.D. Book vide G.D. entry No. 552 dated 10.11.2010 and proceeded to Kakraban PHC. He further deposed that at that time, the appellant also appeared in police station and verbally informed him that he had killed his mother Kajal Das. He entered this fact in the G.D. book vide G.D. entry No. 551 dated 10.11.2010. The appellant also informed P.W.-12 that about 30 minutes back he killed his stepmother by inflicting three blows. The appellant further informed that the dead body and the branch of tree were lying in the house. Thereafter, P.W.-12 deposed that he detained the appellant in custody and then proceeded to the PHC, where he found the dead body. He prepared the surathal report. He examined one witness, namely, Kanti Das and recorded his statement under Section 161 of Cr.P.C. in connection with G.D. Entry No. 552 of 2010. He deposed that Chandra Mohan Das lodged the ejahar and after returning back to police station he registered Kakraban P.S. case No. 186 of 2010 under Section 302 of IPC. After registration of FIR, P.W.-12 formally arrested the appellant and, thereafter, on interrogation he recorded the formal disclosure statement of the appellant which is marked as Exbt-8 and the signature of the appellant is marked as Exbt-8/1. The appellant disclosed that his biological mother had expired after the birth of his younger brother and his father i.e. the informant had married the deceased. Since it was found that the de-ceased was not affectionate to him and his brother, they were separated. But, the deceased used to scold him. The appellant further deposed that his father received Rs. 1,00,000/- by giving mortgage of their homestead land and kept it in a fixed deposit scheme in the name of his step-mother. Since it was found that the de-ceased was not affectionate to him and his brother, they were separated. But, the deceased used to scold him. The appellant further deposed that his father received Rs. 1,00,000/- by giving mortgage of their homestead land and kept it in a fixed deposit scheme in the name of his step-mother. The appellant disclosed in his disclosure statement that on different occasions he demanded money from his step-mother, but he was scolded. The appellant further disclosed that on the day of occurrence at about 6.00/6.30 P.M., while his step-mother was working near the fire oven, he demanded Rs. 500/- from her, but, again she scolded him. Being furious, he took a branch of a gamai tree which was lying near the oven and inflicted three blows on the person of his step-mother and left the branch of tree therein. In furtherance thereof, the appellant disclosed that he could show that branch of tree. The appellant further disclosed that on the way to the police station, he met one Rajib Das and narrated the incident to Rajib. P.W.-12 further deposed that at that instance, he accompanied Dilip to the place of occurrence and the appellant identified the place of occurrence and also the weapon of offence. Proceeding further, P.W.-12, deposed that he found one branch of a gamai tree which was lying there as identified by the accused which he seized immediately by preparing a seizure list (Exbt-M.O. 1). At the place of occurrence he recorded the statements of Shyamal Das and Sushil Das under Section 161 of Cr.P.C. who were present at the time of discovery of fact on information from the accused-person. He also examined Kumari Sipra Das and recorded her statement under Section 161 of Cr.P.C. The wearing apparels of the deceased were seized and P.W.-12 further recorded the statements of some witnesses including Chandra Mohan Das, the husband of the deceased. 7. Submission of the Learned Counsel of the Appellant: 7.1. Mr. Sinha, learned counsel for the appellant contended that the disclosure statement should not be admissible evidence as it was made in the police custody. Next, the learned counsel laid much emphasis on the deposition of P.W.-8 (Sipra Das), particularly her statement that: "My father was not at home. My two brothers Dilip and Swapan were also not available at home" 7.2. Next, the learned counsel laid much emphasis on the deposition of P.W.-8 (Sipra Das), particularly her statement that: "My father was not at home. My two brothers Dilip and Swapan were also not available at home" 7.2. Learned counsel also has drawn our attention to the reply of the appellant answering to question No. 14. Question No. 14 along with its answer is reproduced herein below:- "Question No. 14. P.W. 8 Kumari Sipra Das stated that one year back herself and his younger sister Purnima was prosecuting studies inside their hut and their mother had been cooking food outside the hut and after a while, when they came out found their mother lying near the Chula and blood was oozing from her ear and nose. Neighbouring people arrived there and shifted their mother hospital and she died there. What is your explanation? Answer: I was at Kakraban Market." 8. Submission on Behalf of the State Respondent: 8.1. On the other hand, Mr. Ratan Datta, learned P.P., contended that it was the appellant, who killed his step-mother, Kajal Das and it was proved beyond reasonable doubt. The disclosure statement is admissible in evidence, particularly, to the instance that the weapon of offence, i.e. the branch of gamai tree was discovered on the basis of leading to discovery statement made by the appellant and it was the appellant who showed the weapon of offence at the place of occurrence. 9. We have perused the judgment of the learned Sessions Judge, where the learned Sessions judge held that the appellant was all along consistent in his statement that he killed his step-mother, Kajal Das by a branch of tree and the prosecution case was established beyond reasonable doubt. 10. Discussion of Evidence and Findings of this Court: 10.1. After perusal of the evidence as reproduced in the preceding paragraphs and having regard to the submissions of the learned counsel for the parties, it has come to light that after inflicting blows to his step-mother, Kajal Das, the appellant on his own went to the police station; 10.2. On the way to police station, the appellant met P.W.-2, Rajib Das and told him that he had given a good lesson to his stepmother and was going to the police station; 10.3. On the way to police station, the appellant met P.W.-2, Rajib Das and told him that he had given a good lesson to his stepmother and was going to the police station; 10.3. Simultaneously, the officer-in-charge had received information over telephone from the Kakraban PHC that one dead body in suspicious circumstance was brought to PHC; 10.4. P.W.-12 detained the accused in custody and went to PHC. There he found the dead body of the deceased-Kajal Das, the step-mother of the appellant; 10.5. In the PHC he examined P.W.-2 and recorded his statement under Section 161 of Cr.P.C. who stated that the appellant told him that he had given a good lesson to his stepmother? 10.6. P.W.-12 returned to police station and formally arrested the appellant; 10.7. On the basis of the disclosure statement of the accused, P.W.12 being led by appellant proceeded towards the place of occurrence i.e., the house of the appellant and at that point of time, the appellant pointed to the weapon of offence. P.W. 12 also found bloodstained soil at the spot; 10.8. P.W.-12 examined some witnesses namely, Sushil Das and Shyamal Das, the neighbour witnesses i.e., P.W.-9 and P.W.-10 respectively and examined Kumari Sipra Das, P.W.-8, the daughter of the deceased; 10.9. P.W.-9 and P.W-10 have deposed that in presence of them the appellant admitted that he had killed his step-mother and he showed the branch of tree which was lying near the oven outside the hut of Chandramohan Das, the father of the appellant and husband of the deceased; 11. We have further perused the reply of the appellant in his examination under Section 313 of Cr.P.C. Question No. 15, 16 & 18 and the answers given by the appellant are relevant and are reproduced here under:- "Question No. 15 P.W. 9, Sushil Das stated that on 10.11.2010 he went to the house of Chandramohan at night hearing the news of killing of the wife of Chandramohan and in his presence, Darogababu brought you back to your house as you surrendered in the P.S. and in their presence you admitted that you had killed your step-mother, Kajal. What is your explanation? Answer-Yes Question No. 16. What is your explanation? Answer-Yes Question No. 16. P.W.9 further stated that you showed a branch of Gamai tree which was lying near a woven outside the hut of Chandramohan and Darogababu seized that branch of tree by preparing a seizure list and he signed on the seizure list and this witness also identified the branch of tree. What is your explanation? Answer: Yes Question No. 18. P.W. 10, further stated that at night, at about 9 p.m. Darogababu came to the house of Chandramohan and you were in his custody and in his presence and also in presence of Sushil Das, in the house of Chandramohan, you showed a branch of tree which was lying near a woven, by which you inflicted blows on Kajal. Darogababu seized the branch of tree by preparing seizure list and he signed there on as witness. The witness also identified the branch of tree. What is your explanation? Answer: Yes" 12. Keeping in view the aforesaid evidence according to us, the prosecution has been able to establish the guilt of the appellant beyond reasonable doubt. 13. We find force in the submission of learned P.P. that the appellant is found to be consistent at all levels starting from the stage of investigation and up to his examination under Section 313 of Cr.P.C. Immediately after inflicting blows to his step-mother he went to the police station and on the way he met P.W.-2 to whom he confessed that he gave a good lesson to his step-mother i.e. the deceased. In our opinion, the statements which the accused-appellant communicated to P.W.2 amounts to a confession which is made immediately after the incident The appellant may not have in so many words admitted to have killed his step mother, but he did clearly stated that he has taught her a good lesson. This was a clear extrajudicial confession. This confession gets ample corroboration from other evidence on record. If this confession is juxtaposed with his subsequent conduct and other pieces of evidence established in the chain of circumstances, then, there should have been no doubt about the probative value of such extra-judicial confession. He was confronted with his confessional statements while recording his statement under Section 313 of Cr.P.C. He admitted to have made such statements. 14. Furthermore, the appellant made disclosure statement to the investigating officer. He was confronted with his confessional statements while recording his statement under Section 313 of Cr.P.C. He admitted to have made such statements. 14. Furthermore, the appellant made disclosure statement to the investigating officer. The appellant never retracted from the statement which he made in the disclosure statement before the police officer. P.W.-12 recorded his disclosure statement. Thereafter, the appellant led the police team to the place of occurrence and showed and identified the weapon of offence i.e. the branch of tree. The disclosure statement is reproduced here-in-below, for convenience:- "Disclosure statement of accused person Dilip Das@ Madhab (24) s/o. Sri Chandra-mohan Das of vill Bashanta Nagar, Melaghartilla, P.S.-Kakraban, South Tripura is recorded of in c/w KKB PS Case No. 186/10 dt. 10.11.10 U/S. 302 IPC. I am stating on being asked that my name is Sri Dilip Das. People call me by the name of Madhab also. My father's name is Sri Chandra-mohan Das, VILL Basantanagar, Melaghar tilla, Kakraban, by occupation-labourer. My mother died after the birth of my younger brother. My father had married for the second time. The name of my step mother is Kajal Das. My step (mother) did not like me. My father had separated me and my brother following the words of my step mother. Often my step mother would rebuke me. My father had mortgaged our homestead land and took loan of one lakh rupees. My father had kept this money in the bank in the credit of my step mother. He had not given me even one rupee. Several times, I sought money to the step mother. She would rebuke me when I sought money to her. Today evening at about 6/6.30 minutes, my step mother was working near the oven. I sought money to her. No sooner had my step mother rebuked me, then i had given three blows on her head by one branch of Gamai tree kept near the oven. I had kept the branch (of tree) very near to the oven after giving blows. I can show the branch of the tree. After killing my step mother, I came to the Kakaraban police station. On the way to the police station, I met with the son of Kacan Das namely Rajib Das. I described the matter to Rajib in detail" 15. I can show the branch of the tree. After killing my step mother, I came to the Kakaraban police station. On the way to the police station, I met with the son of Kacan Das namely Rajib Das. I described the matter to Rajib in detail" 15. True it is, only the portion that "I have kept the branch (of tree) very near to the oven" and "I can show the branch of the tree" which are distinctly related to the discovery of the fact i.e. the weapon of offence and the place of where it has been kept is admissible evidence under Section 27 of the Evidence Act. However, this part is consistent with other evidence on record. 16. In his examination under Section 313 of Cr.P.C., the appellant was noticed regarding all the incriminating statements as adduced by the witnesses particularly P.W.-9 and P.W.-10 where he admitted the statements of P.W-9 and P.W.-10 that in their presence he had killed his step-mother, Kajal and showed the branch of tree i.e. the weapon of offence which was lying near a "oven" outside the hut of Chandramohan Das which was seized by the police. 17. Thus, it is clear that the appellant was afforded full opportunity to deny or retract from his earlier statement which he confessed before P.W.-12 and also to deny the statements of P.W.-9 and P.W.-10. 18. In Reena Hazarika Vs. State of Assam reported in (2019) 13 SCC 289 , the Supreme Court while dealing with all the object of Section 313 held thus: [SCC-p. 295, para-19] "19. Section 313, Cr.P.C. cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2), Cr.P.C. The importance of this right has been considered time and again by this court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) Cr.P.C. the Court is duty bound under Section 313(4) Cr.P.C. to consider the same. The mere use of the word "may" cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 Cr.P.C., in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 Cr.P.C. and to either accept or reject the same for reasons specified in writing." 19. On plain analysis of the evidence laid in the case, we find that prosecution has been able to establish all the circumstances that after inflicting blows to his step-mother, the appellant on the way to the police station met P.W.-2, confessed before him that he had given a good lesson to his step-mother; the next circumstance is that he went to the police station and disclosed the entire episode of killing of his step-mother; which has also been established by P.W.-12. The circumstance that the appellant suo moto went to the police station has also been proved. So far as circumstances are concerned related to the disclosure statement, it has been proved that the appellant voluntarily disclosed that if he was taken to the place of occurrence, then, he could show the weapon of offence used to inflict blows to his step-mother. So far as the circumstances are concerned that he admitted his guilt in presence of P.W.-9 and P.W.-10 and showed the weapon of offence that was used to kill his step-mother has also been proved beyond reasonable doubt. 20. Above all, in his examination under Section 313 of Cr.P.C. when he was noticed of the incriminating statements made by P.W.-9 and P.W.-10, he did not deny rather he admitted the statements made in the disclosure statement (Exbt-8). 20. Above all, in his examination under Section 313 of Cr.P.C. when he was noticed of the incriminating statements made by P.W.-9 and P.W.-10, he did not deny rather he admitted the statements made in the disclosure statement (Exbt-8). According to us, the statement made by P.W.-8 that during 6.00/6.30 P.M. his two brothers including appellant were not available at home is an isolated statement which cannot supersede the existence of overwhelming evidence revealed from the statements of the witnesses being well corroborated by the appellant himself. 21. For the reasons stated above, we find no infirmity in the findings returned by the learned Sessions Judge while convicting the appellant. However, we have noticed that P.W.-12 has stated in his evidence that while the appellant demanded Rs. 500/- from his step-mother, she scolded the appellant to which appellant became furious and at the spur of moment the appellant inflicted blows to his step-mother which appeared to be fatal. 22. What has transpired after a close notice of the episode of the killing of the deceased, it is evidently clear that the occurrence took place suddenly and there was no premeditation on the part of the appellant. The branch of tree i.e. the weapon of offence was lying nearby the oven where the deceased was cooking. There is no evidence that the appellant made special preparation for assaulting the deceased with the intent to kill her. There is no dispute as is evident from the report of the P.M. examination and the deposition of the doctor that those blows were inflicted in such a manner that the deceased suffered grievous injuries which was sufficient to cause death. However, from the conduct of the appellant we are convinced that the injury was not intended by the appellant to kill the deceased but, it was within the knowledge of the appellant that such blows would likely lead her to death. 23. In the totality of the facts and circumstances, in our considered opinion, the instant case falls under Section 304 Part I IPC as stated above. Although the appellant has no intention to cause death but it can safely be inferred that the appellant knew that such bodily injury was likely to cause death, hence, the appellant is guilty of culpable homicide not amounting to murder and is liable to be punished under Section 304 Part I of IPC. 24. Although the appellant has no intention to cause death but it can safely be inferred that the appellant knew that such bodily injury was likely to cause death, hence, the appellant is guilty of culpable homicide not amounting to murder and is liable to be punished under Section 304 Part I of IPC. 24. Accordingly, the judgment of conviction and sentence under Section 302 IPC as imposed by the learned Sessions Judge is set aside and the appellant is convicted under Section 304 Part I of IPC, and sentenced the appellant to suffer rigorous imprisonment for the period he has already undergone. It is informed that the appellant has already suffered over 9(nine) years of rigorous imprisonment. 25. In view of our aforesaid decision, the period of imprisonment the petitioner has already suffered is set off and the petitioner is set at liberty. Issue release warrant. 26. With the above observation and direction, the instant appeal is partly allowed with above modification.