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2021 DIGILAW 264 (GAU)

Meghu Sabar v. State Of Assam

2021-03-15

MIR ALFAZ ALI, SUMAN SHYAM

body2021
JUDGMENT Suman Shyam, J. - Heard Mr. A. Ahmed, learned Amicus Curiae, appearing for the appellant. We have also heard Mr. M. Phukan, learned APP, Assam, appearing for the State/ respondent No.1. None has appeared for the other respondents. 2. The instant appeal is directed against the judgement and order dated 23/01/2011 passed by the learned Sessions Judge, Tinsukia in connection with Sessions Case No. 33(T)/2008, convicting the sole appellant under Section 302 of the IPC and sentencing him to undergo rigorous imprisonment for life and also to pay fine of Rs. 3,000/- and in default, to undergo rigorous imprisonment for one month. 3. The prosecution case, in a nutshell, is that on 29/07/2007 at around 9 a.m., the accused had dealt cut blows on the head of Gobinda Kahar, as a result of which, he had sustained grievous injury and had to be shifted to Tinsukia Civil Hospital wherein, he had died. 4. On 29/07/2007, seven persons including PWs. 2, 3, 4, 5, 6 and 8 had lodged an ejahar with the Officer-in-Charge of Panitola Police Out Post coming under the Tinsukia Police Station. Upon receipt of the ejahar, GD entry No. 511 dated 29/07/2007 was made in the Panitola Out Post and the ejahar was forwarded to the Tinsukia Police Station for registration of a case. Accordingly, Tinsukia Police Station case No. 405/2007 was initially registered under Section 326 of the IPC. Subsequently, after the death of the injured, section 302 of the IPC was added. Upon completion of investigation in connection with Tinsukia PS case No. 405/2007, the IO had submitted charge sheet against the appellant, based on which, charge was framed under section 302 of the IPC. Since the appellant had pleaded not guilty and claimed to be tried, the matter went up for trial. 5. The prosecution had examined as many as 11 witnesses including the doctor who had conducted the post mortem examination as well as the IO Shri Chintaharan Barman, so as to bring home the charge. However, surprisingly enough, the sole eye witness in this case Smt. Faguni Kahar i.e. the wife of the deceased was not examined as a prosecution witness. Noticing the above, Faguni Kahar was examined as a Court Witness (CW) No.1. Since the CW-1 is the sole eye witness in this case, let us first analyze the testimony of this witness. 6. However, surprisingly enough, the sole eye witness in this case Smt. Faguni Kahar i.e. the wife of the deceased was not examined as a prosecution witness. Noticing the above, Faguni Kahar was examined as a Court Witness (CW) No.1. Since the CW-1 is the sole eye witness in this case, let us first analyze the testimony of this witness. 6. In her deposition, CW-1 had stated that the deceased was her husband and he was residing in their house at the time of occurrence. On the date of the incident, the deceased had gone to his son's house at about 7 a.m. and came back at about 9 a.m. She was watching him coming back to their house across the field when she saw accused Meghu dealing two cut blows to her husband by means of a dao, when he was about to reach home. At that time, her husband fell down; he had sustained injuries on his head. On reaching there, she had held her injured husband and also raised alarm, as a result of which, neighbouring people gathered there and apprehended the accused. Later on, they handed the accused over to the Police. CW-1 has also stated that her husband was put into a thela (hand-cart) and taken to the local Tea Estate Hospital and from there, to the Dibrugarh Medical College and Hospital, where he had breathed his last. CW-1 has also deposed that the Police had seized the dao and the people of the VDP took the same from the accused. She has also categorically deposed of having seen the accused hacking her husband from a distance of about 25/30 ft. During her cross examination, the testimony of this witness could not be shaken. 7. Pw-1 Dr. Netromoni Kakoti was the doctor on duty in the Assam Medical College and Hospital, Dibrugarh, who had conducted the post mortem examination on the dead body. According to the post mortem report (Ext.1), there were three incised wounds on the dead body, which are of following nature:- "Injuries :- (i) Incised wound of size 12 cm with 12 numbers of stitches present over the right parieto-temporal bones longitudinal and laterally in the bone depth. The margins were clear cut and antemortem blood clot present in the surface of the wound which resisted after washing with water. The margins were clear cut and antemortem blood clot present in the surface of the wound which resisted after washing with water. (ii) Incised wound of size 14 x 3 cm present over the left parietal bone vertically and extends upto brain depth. The margins were clear cut and antemortem blood clot present in surface of the wound which resisted after washing with water. (iii) Incised wound of size 5 x 2 cm present front of the left upper 1/3 or arm, 10 cm below from tip of the shoulder." The doctor had opined that the death was due to coma resulting from the head injuries as described and that all the injuries were ante mortem and caused by sharp cutting weapons and were homicidal in nature. 8. Pw-2 is a neighbour of the deceased and the accused and he has deposed that on the date of occurrence, hearing the wife of the deceased screaming loudly, he went there and found that the deceased was in an injured condition. On his arrival at the place of occurrence, he heard the wife (CW-1) of the deceased shouting that the accused had cut her husband. The injured was then taken to the hospital. When he, along with few others had searched for the accused, they found him in Line No. 3 of the garden. At that time, the accused had a dao in his hand, which was forcibly snatched away by all of them after assaulting him with a "lathi" in his right arm. On being enquired, the accused had confessed before the PW-2, Sri Suleman Bagh (PW-3), Sri Paban Bhuyan (PW-4), Sri Giridhari Mura (PW-6) and others present there of having cut the deceased. PW-2 has also deposed that all the people had heard the accused confess his guilt. The persons present there then produced the accused persons at the Police Station along with the 'dao' which was seized by the Police. Thereafter, he along with some other persons, who had accompanied him to the Police Station, had lodged the ejahar (Ext-2) and Ext. 2(1) is his signature. PW-2 has also stated that the "dao" was seized by the Police from him. 9. Thereafter, he along with some other persons, who had accompanied him to the Police Station, had lodged the ejahar (Ext-2) and Ext. 2(1) is his signature. PW-2 has also stated that the "dao" was seized by the Police from him. 9. Pw-3 Sri Suleman Bagh, PW-4 Sri Paban Bhuyan, PW-6 Sri Giridhari Mura were the other persons, who, according to the PW-2, were present along with him when the accused was found out and had confessed to have dealt cut blows upon the deceased. These witnesses have also deposed in similar lines, not only confirming the fact that the accused was found with a 'dao' in his hand which was forcibly snatched away by them but these witnesses had also stated that the accused had confessed in their presence to have assaulted the victim. PW-5 Lengru Sabor has also corroborated the evidence adduced by the other witnesses who were present at the time when the accused had confessed to have assaulted the deceased. During their cross examination, the evidence of PWs 2 to 6 could not be shaken by the defense side. 10. Pw-7 Sri Ramdev Panika had stated that he saw the VDP personnel gather near the place and when he went there, he saw the accused was tied with a rope and the injured (deceased) was sent to the hospital. Then he reported the matter to the Garden Management informing that the accused had assaulted the victim. PW-7 has also stated that when they asked the accused, he had confessed to have killed the victim. The testimony of PW-7 also corroborates the version of PWs 2 to 6 as regards the extra-judicial confession made by the accused. 11. Pw-8 Sri Raja Tanti has deposed that he had heard from Sukhram i.e. the son of the victim, that his father was assaulted by Meghu Sabar. Then he went in search of the accused and he found him in the garden and that he had a 'dao' in his hand which was snatched away from him and handed over to the Chowkidar. 12. Pw-9 Sri Jatin Sabar did not witness the incident but on being informed by the wife of the deceased, he went to the place of occurrence and saw the dead body. PW-9 has stated that he also saw cut injuries in the head of the deceased. 12. Pw-9 Sri Jatin Sabar did not witness the incident but on being informed by the wife of the deceased, he went to the place of occurrence and saw the dead body. PW-9 has stated that he also saw cut injuries in the head of the deceased. When they chased and caught hold of the accused, at that time, he had a 'dao' in his hand which was snatched away and handed over to the Police. In his cross examination, this witness had stated that the accused was of unsound mind at the time of occurrence. 13. Pw-10 Sri Sukram Kahar is the son of the deceased. He also did not witness the occurrence but came to the place of occurrence after the incident and saw his father lying injured on the ground. PW-10 has stated that he had noticed the accused, who was present at the place of occurrence with a 'dao' in his hand and was later on apprehended by the public. PW-10 has also stated that his father was taken to the Civil Hospital and thereafter, to the AMCH, Dibrugarh, where he died. 14. Pw-11 Sri Chintaharan Barman is the I.O. in this case. He has deposed that after making the GD entry No. 511 dated 29/07/2007, he was entrusted with the job of carrying out preliminary investigation. After that, Tinsukia PS case No. 405/2007 was registered. He had examined the informants at the Out-post and had also recorded their statement. On that day itself, he had gone to the place of occurrence, examined other witnesses and recorded their statement. The I.O. has deposed that he had seized the 'dao' used by the accused, drew sketch map of the place of occurrence. After the death of the victim, his dead body was sent for post mortem examination and he had collected the post mortem report and the inquest report and thereafter, submitted charge sheet against the accused person. During his cross examination, PW-1 has stated that none of the witnesses had stated before him that the accused was insane. PW-11 has also confirmed that the wife of the deceased had stated that she had witnessed the incident. 15. After recording the evidence of the prosecution side, statement of the accused was recorded under section 313 of the Cr.P.C. wherein, he had admitted to have assaulted the victim because he had stolen their cattle. PW-11 has also confirmed that the wife of the deceased had stated that she had witnessed the incident. 15. After recording the evidence of the prosecution side, statement of the accused was recorded under section 313 of the Cr.P.C. wherein, he had admitted to have assaulted the victim because he had stolen their cattle. However, according to the accused, he had assaulted the victim with a stick and not a 'dao'. 16. Based on the evidence available on record, the learned trial Court had come to a conclusion that the charge brought against the accused under Section 302 of the IPC was established beyond all reasonable doubt and accordingly, convicted the appellant and sentenced him to undergo rigorous imprisonment for life and also to pay fine. 17. There is no controversy in this case regarding the fact that the deceased Gobinda Kahar had died a homicidal death. The post mortem report (Ext.-1) and the opinion of the doctor (PW-1) also establish the said fact beyond any doubt. 18. As mentioned above, CW-1 has seen the incident. This eye- witness has narrated the manner in which the accused had dealt 'dao' blows on the head of the victim. The testimony of this witness has been found to be reliable by the learned trial Court. We do not find any justifiable ground to disagree with the said opinion of the learned court below. 19. Pws 2 to 6 have all deposed in one voice that on the day of the incident, the accused was found with a 'dao' in his hand which was later snatched away by the villagers and he had confessed before them of having killed the victim. The Extra Judicial Confession of the accused was not made in presence of any Police Officer. The testimony of PWs 2 to 6 are not only found to be consistent but the same are also free from any contradiction. Their version also find due corroboration from the testimony of the eye witness i.e. CW-1 as well as from PW-7. Therefore, over and above the direct evidence of the eye-witness, we find that there is extra judicial confession of the accused which could be relied upon by the prosecution side to prove the charge brought against the accused. 20. As noted above, in his statement recorded under Section 313 Cr.P.C., the accused has also admitted to have assaulted the victim. Therefore, over and above the direct evidence of the eye-witness, we find that there is extra judicial confession of the accused which could be relied upon by the prosecution side to prove the charge brought against the accused. 20. As noted above, in his statement recorded under Section 313 Cr.P.C., the accused has also admitted to have assaulted the victim. It is also evident from the materials on record that the Police had seized the 'dao' used by the accused and the accused was apprehended by the villagers and handed over to the Police. Therefore, from the evidence available on record, we have no manner of doubt that the prosecution had succeeded in establishing the charge brought against the accused under Section 302 of the IPC. 21. At this stage, Mr. Ahmed, leaned Amicus Curiae appearing for the appellant submits that there is evidence to suggest that the accused was suffering from insanity at the time of the incident and, therefore, he would be entitled to the benefit under section 84 of the IPC. By referring to the testimonies of PW-7, 9 and CW-1, Mr. Ahmed submits that there are materials available on record to indicate that the accused was suffering from mental retardation. In support of his above argument, Mr. Ahmed has placed reliance on two decisions i.e. Devidas Loka Rathod Vs. State of Maharashtra, (2018) 7 SCC 718 and Purna Kanta Baruah Vs. State of Assam and another,2018 4 GLT 40. 22. As an alternative plea, the learned Amicus Curiae has also argued that the evidence of PW-3 indicates that there was an altercation between the accused and the deceased before the occurrence and, therefore, this case would come within the purview of section 304 Part-II of the IPC, in which event, the appellant would be entitled to a lesser punishment. 23. Mr. M. Phukan, learned APP, Assam, appearing for the State has, however, opposed such submission of the appellant's counsel and has argued that there is no evidence available on record either to hold that the accused person was suffering from any legal insanity on the date of occurrence nor is there anything to suggest that the occurrence was preceded by any altercation between the parties. 24. We have considered the above submissions made by learned counsel for the appellant and have also carefully gone through the evidence available on record. 25. 24. We have considered the above submissions made by learned counsel for the appellant and have also carefully gone through the evidence available on record. 25. It may be noted herein that Chapter IV of the IPC lays down the general exception which includes section 84 which deals with the act done by a person of unsound mind. Section 84 of the IPC is reproduced herein below for ready reference :- "84. Act of a person of unsound mind Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." 26. In the case of Devidas Loka Rathod (Supra), the Hon'ble Supreme Court had observed that there is a rebuttable presumption under the law that every person doing an offence is sane and liable for its act. However, if from the materials placed on record, a reasonable doubt is created in the mind of the Court with regard to the mental condition of the accused at the time of occurrence, he shall be entitled to the benefit of reasonable doubt and consequential acquittal. 27. In the case of Purna Kanta Baruah (Supra), a Division Bench of this Court had the occasion to interpret Section 84 of the IPC, in so far as legal insanity is concerned and has made the following observations in para 20 :- "20. The expression "incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law" appearing in the above provision of Section 84 IPC makes it amply clear, that medical insanity and legal insanity are not synonymous. In order to get the protection u/s 84 IPC, it needs to be proved, that at the time of commission of offence, the accused, by reason of unsoundness of mind was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. Therefore, insanity or unsoundness of mind as contemplated by Section 84 IPC is not all any kind of insanity. It is only such unsoundness of mind, which impairs the cognitive faculties of the mind, which can form a ground for exception from criminal liability." 28. Therefore, insanity or unsoundness of mind as contemplated by Section 84 IPC is not all any kind of insanity. It is only such unsoundness of mind, which impairs the cognitive faculties of the mind, which can form a ground for exception from criminal liability." 28. In the light of the legal principles as referred to above, let us now examine as to whether there is reliable evidence available on record to conclude that the appellant was suffering from legal insanity on the date of occurrence. 29. The defense side did not adduce any evidence. The plea of insanity is, therefore, entirely based on the evidence adduced by the prosecution witnesses. 30. We find from the evidence on record that there are three prosecution witnesses who had mentioned about some form of mental unsoundness of the appellant. PW-7 had stated that the mental condition of the accused was not sound and he was mentally retarded a few days prior to the occurrence. PW-9 had also mentioned during his cross examination that the accused person was of unsound mind at the time of occurrence. Even the CW-1 had stated during her cross examination that the accused was like a mad person. However,none of those witnesses have mentioned about any fact situation or incident involving the accused which lead to the forming of such opinion. On the contrary, it appears that the statements made by those witnesses pertaining to the mental unsoundness of the appellant is nothing but their individual opinion on the mental state of the accused, which is not backed by any evidence pointing at any specific conduct of the accused preceding the occurrence. From a careful scrutiny of the evidence available on record, we also do not find anything which could throw light on any particular conduct of the appellant pointing towards either his medical or legal insanity. 31. Law is well settled that burden of proof with regard to the plea of insanity under Section 84 of the IPC is always upon the defense side. In the case of Dahyabhai Chhaganbhai Thakkar Vs. 31. Law is well settled that burden of proof with regard to the plea of insanity under Section 84 of the IPC is always upon the defense side. In the case of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, (1964) AIR SC 1563, it was held that even if the accused was not able to establish conclusively that he was insane at the time when he committed the offence, the evidence placed before the Court by the accused or by the prosecution, can be relied upon, if it raises a reasonable doubt in the mind of the Court as regards one or more of the ingredients of the offence including the mens rea of the accused and in that case, the Court would be entitled to acquit the accused on the ground that the general burden of proof falling on the prosecution was not discharged. 32. In the instant case, as noted above, the defense has not led any evidence. None of the three witnesses viz CW-1, PWs 7 & 9 have described the conduct or any activity on the part of the accused which might go to show that on the date of the occurrence he was suffering from any degree of insanity. Not only that, none of the prosecution witnesses have even remotely indicated that the unsoundness of mind of the appellant was of such nature that he was incapable of knowing the nature of the act or that what he was doing was either wrong or contrary to law. 33. It must be noted here-in that the benefit of acquittal under section 84 of IPC will not be available to an accused merely on account of some irrationality or abnormality in his or her behavior. Section 84 of IPC will come into play only if it is prima facie established on the basis of cogent evidence that the accused was suffering from legal insanity at the time of the occurrence and was therefore, incapable of knowing or understanding the nature and implication of his act due to unsoundness of mind. The evidence adduced by the CW-1 and PWs 7 and 8, in our opinion, would not be sufficient for this court to arrive at such a conclusion in favour of the accused. 34. The evidence adduced by the CW-1 and PWs 7 and 8, in our opinion, would not be sufficient for this court to arrive at such a conclusion in favour of the accused. 34. It is also to be noted here-in that in his statement recorded under section 313 Cr.P.C the accused has clearly mentioned that he had assaulted the victim for stealing his cow. We also find from the testimony of PW-3 that the accused, while confessing before number of persons, had stated that he had cut the injured for taking revenge. From the above evidence available on record it can be safely concluded that the accused had assaulted the victim with a sharp weapon in the vital parts of his body, in cold blood and with premeditation, so as to take revenge. Therefore, it cannot be said that the mental condition of the accused was unsound at the time of the incident. Rather, the motive and the mens rea to kill the deceased is clearly established from the materials available on record. 35. There is also no evidence to indicate any altercation between the accused and the victim prior to the occurrence. Therefore, we are un-able to agree with the submission of the learned amicus curiae that the appellant in this case deserves a lesser punishment. 36. For the reasons stated herein above, we do not find any good ground to interfere with the impugned judgement and order dated 23/01/2011 passed by the learned Sessions Judge, Tinsukia in Sessions Case No. 33(T)/2008. This appeal is, therefore, held to be devoid of any merit and the same is accordingly dismissed. 37. Before parting with the record, we would like to place on record our appreciation for the services rendered by Mr. A. Ahmed, learned Amicus Curiae and direct the Registry to make available to him, just remuneration, as per the notified rate. Send back the LCR.