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2021 DIGILAW 501 (GAU)

Lakhi Swargiary Barpeta v. State Of Assam

2021-08-24

PARTHIVJYOTI SAIKIA, SUMAN SHYAM

body2021
JUDGMENT : Suman Shyam, J 1. Heard Mr. P. Mahanta, learned Amicus Curiae, appearing for the appellant. We have also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/ respondent No.1. None has appeared for the informant/respondent no. 2. 2. The sole appellant Lakhi Swargiary has preferred this appeal challenging the judgment and order dated 17/12/2018 passed by the learned Additional Sessions Judge, Bajali, Pathsala, in connection with Sessions Case No. 08/2018, whereby, the appellant was convicted under Sections 448/302 of the Indian Penal Code (IPC) and sentenced inter-alia to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/-with default stipulation. 3. The facts and circumstances giving rise to filing of the instant appeal are that the appellant is the son-in-law of the deceased. On 24/12/2017, at around 2-30 p.m., when the deceased Akan Swargiary was sleeping in the house. The appellant/accused caused grievous injury to him by dealing a blow on the head of the victim with a iron hammer, as a result of which, the victim had sustained grievous injuries. Injured Akan Swargiary was taken to Bhawanipur CHC in a critical condition, wherefrom, he was referred to FAAMCH, Barpeta for better treatment. Later on, Akan Swargiary died in the hospital. 4. On 25/12/2017, Sri Bijoy Kumar Swargiary (PW-1) i.e. the nephew of the deceased had lodged an ejahar before the In-charge of Sarupeta Police Out Post reporting the incident. Up on receipt of the ejahar, Sarupeta Out Post GD entry No. 609 dated 24/12/2017 was made and thereafter, the ejahar was forwarded to the Patcharkuchi Police Station for registering a case. Accordingly, Patacharkuchi PS case No. 858/2017 was registered under Section 448/326 of the IPC and the matter was taken up for investigation. However, during the course of investigation and while receiving treatment at the FAAMCH, Barpeta, the victim had succumbed to his injuries on 28/12/2017 and accordingly, Section 302 of IPC was added. Upon completion of investigation, the IO had submitted charge sheet against the accused person, based on which, charges were framed against the accused under Section 448/302 of the IPC. Since the accused had pleaded not guilty and claimed to be tried, the matter went up for trial. 5. There is no eye witness in this case and the prosecution case is entirely based on circumstantial evidence. Since the accused had pleaded not guilty and claimed to be tried, the matter went up for trial. 5. There is no eye witness in this case and the prosecution case is entirely based on circumstantial evidence. In order to drive home the charges brought against the accused, the prosecution had examined as many as 11 witnesses including the doctor (PW-9) who had conducted autopsy on the dead body and the I.O. (PW-11). PW-8 Smt. Minati Swargiary is the daughter of the victim and the wife of the accused/appellant. At the relevant time, she was sitting in the Verandah of the house where the incident took place and, therefore, is a key witness in this case. Upon appreciating the evidence adduced by the prosecution side, more particularly the testimony of PW-8, the learned trial Court had arrived at the conclusion that the prosecution had succeeded in establishing the charges brought against the appellant/accused beyond reasonable doubt. Accordingly, the appellant was convicted for committing the murder of his father-in-law and sentenced as aforesaid. 6. By pointing out the omissions, inconsistencies and contradictions in the testimony of the prosecution witnesses, Mr. Mahanta submits that the prosecution has failed to prove the chain of circumstances so as to establish the charges brought against the appellant beyond reasonable doubt. By referring to the evidence adduced by PWs 1, 2 and 3, Mr. Mahanta submits that in view of the inherent contradictions in their testimony, the evidence adduced by these three witnesses were liable to be discarded, in which event, the prosecution case would not have any legs to stand. As such, by giving the benefit of doubt, the appellant deserves to be acquitted in this case. 7. Alternately, Mr. Mahanta has also argued that it has come out from the statement of the accused recorded under Section 313 Cr.P.C. that just before the occurrence, the deceased had slapped the accused after abusing him in filthy language. He submits that it was such altercation that had prompted the appellant to push the victim resulting into his injury. Therefore, it is apparent that the accused had acted under grave and sudden provocation having lost his power of self control and as such, there was no pre-meditation on the part of the appellant to kill the deceased. 8. In support of his above arguments, Mr. Therefore, it is apparent that the accused had acted under grave and sudden provocation having lost his power of self control and as such, there was no pre-meditation on the part of the appellant to kill the deceased. 8. In support of his above arguments, Mr. Mahanta has relied upon a decision of the Hon’ble Supreme Court rendered in the case of Sunil Kumar Sambhudayal Gupta & Ors. Vs. State of Maharashtra reported in 2010 (13) SCC 657 and a decision of Madras High Court rendered in the case of Murthy Vs. State represented by Sub-Inspector of Police, Nanguneri Police Station, Tirunelveli (Criminal Appeal No. 404 of 2003) 9. Ms. Bhuyan, learned APP, Assam, on the other hand, has argued that the homicidal death of the deceased has been established by cogent medical evidence brought on record and the testimony of PW-8 alone is sufficient to prove beyond any doubt that it was none other than the appellant who had grievously injured the deceased by hitting him on the head with an “iron hammer”, which had resulted into his death. As such, submits Ms. Bhuyan, there is no scope for interfering with the impugned judgment and order passed by the learned Trial Court. 10. In order to appreciate the above noted contentions advanced by the learned counsel for the parties, let us first examine the testimony of the key witness in this case i.e. the PW-8. 11. As noticed above, PW-8 Smt. Minati Swargiary is the daughter of the victim and the wife of the appellant/accused. The prosecution has examined her as a witness. She is, therefore, undoubtedly, the most unfortunate person in the entire episode. PW-8 has deposed before the court stating that on the date of the incident, in the noon, while she was cutting betel nut and was sitting in the verandah of the house of her father, after lunch and while her father Akan Swargiary was sleeping inside the room, at that moment, her husband i.e. the accused Lakhi Swargiary had entered into the room of her father and after some time, he came out from the room and told her that he had assaulted her father armed with a ‘hammer’. Immediately, she entered the room and saw her father Akan Swargiary was lying on the bed with injury on his head and blood oozing out. Immediately, she entered the room and saw her father Akan Swargiary was lying on the bed with injury on his head and blood oozing out. PW-8 has deposed that she raised a hulla and the neighbouring people rushed to the house. The people along with her son Diganta took her father Akan Swargiary to the hospital. After three days of occurrence, her father Akan Swargiary died at the FAAMCH, Barpeta. This witness has also deposed that she had seen the “iron hammer” which belongs to them and the Police had recorded her statement. 12. During her cross examination, PW-8 has stated that she had not seen the “hammer” in the hand of her husband while he was entering the room of her father and she had also not seen the exact incident which had happened inside the room. PW-8 has also stated that three days before the occurrence, there was quarrel between her father and her husband (accused). She never visited her matrimonial house after marriage and she was staying in the land of her father with her children. They cultivated the land of her father and maintain livelihood therefrom. This witness has stated that at present, she, along with her son has been staying in the land of her father and also cultivating there. It has also come out from the evidence of PW-8 that the villagers did not like the accused Lakhi Swargiary since he used to drink and was staying as a “Gharjowai”. The villagers used to call the accused “Dhoko” and sometimes the villagers used to ask the accused as to why he has been staying in the house of his in-laws. PW-8 has, however, denied the suggestion put to her that the accused did not tell her just after the occurrence that he had assaulted her father, armed with a “hammer”. 13. PW-9 Dr. Mamata Devi had conducted the post-mortem examination on the dead body on 28/12/2017. As per the post mortem report, the following injury was found in the dead body :- “External appearance : External wounds : 1. A stitch wound of size 4.3 cm x 3.2 cm is present over right temporo parietal region, 1.8 cm above right ear and 11 cm right to midline. Repaired with five number of stitches. On removal of stitch laceration of size 6 cm x 4.5 cm is found which is bond deep. A stitch wound of size 4.3 cm x 3.2 cm is present over right temporo parietal region, 1.8 cm above right ear and 11 cm right to midline. Repaired with five number of stitches. On removal of stitch laceration of size 6 cm x 4.5 cm is found which is bond deep. A depressed comminuted fracture is present underneath the wound. Right sided whole scalp and right temporalis muscle is contused which is blue in colour. 2. Mark of ligature on neck dissection etc. : Not detected. On dissection neck tissues are healthy.” The doctor has opined that death was due to “coma” as a result of injury sustained in the head. All the injuries were ante mortem and caused by blunt force impact and was homicidal in nature. From the medical evidence brought on record, it is convincingly established that the victim had died a homicidal death due to the head injury sustained by him. 14. The testimony of PW-8 is found to be consistent and free from any contradictions. This witness had clarified that she had not seen the incident nor did she see her husband going inside the room of her father with the “iron hammer” in his hand but she had categorically deposed of having seen the appellant/accused entering the room of the deceased and has stated that after coming out of the room, the accused/appellant has told her to have assaulted her father with a “hammer”. Immediately, upon hearing the same, she had entered the room and found her father lying on the bed in an injured condition. Even if the PW-8 is not an eye witness to the occurrence, she was the person present and sitting in the Verandah of the house when the incident occurred and, therefore, was in the best position to see the accused entering the room of the deceased and also his coming out therefrom. Moreover, PW-8 was evidently the person who had entered the room of her father at the earliest point of time i.e. immediately after the accused/appellant had come out and she had seen her father lying in an injured condition. Therefore, the evidence of PW-8, viewed in the light of the medical evidence brought on record, clearly goes to establish beyond any doubt that it was none other the appellant/accused who had assaulted his father-in-law with a “iron hammer”, resulting into his death. 15. Therefore, the evidence of PW-8, viewed in the light of the medical evidence brought on record, clearly goes to establish beyond any doubt that it was none other the appellant/accused who had assaulted his father-in-law with a “iron hammer”, resulting into his death. 15. Coming to the testimony of other witnesses, the PW-1 (informant) has deposed before the Court that on the day of the occurrence, he was sleeping at his home after having lunch when Bogadhar Swargiairy (PW-3) came to his house and told him that the accused Lakhi Swargiary has assaulted his Uncle Akan Swargiary, armed with an “iron hammer”, as a result of which, he had sustained grievous injury. PW-1 has further deposed that hearing about the occurrence, he ran to the house of Akan Swargiary and saw him with injury on his head with blood oozing out. At that time, he saw accused Lakhi Swargiary in the house and on being asked, the accused told him that he has assaulted Akan Swargiary with “iron hammer”. Later on, the victim was taken to Bhawanipur CHC and then to the FAAMCH, Barpeta, where he died on 28/12/2017. 16. Although, the PW-1 has stated that he was informed by PW-3 Sri Bogadhar Swargiary, yet, the said witness (PW-3) gave a slightly different version by stating that on the date of the incidence when he was in his house, he had heard hullafrom the house of Akan Swargiary and heard accused Akan Swargiary shouting that he has assaulted his father-in-law (Akan Swargiary). PW-3 has stated that his house was adjacent to the house of the accused Lakhi Swargiary as well as the deceased Akan Swargiary. On hearing the hulla, his wife Kabita Swargiary (PW-2) immediately rushed to the house of the deceased and he also followed her. Inside the room, he saw that Akan Swargiary was lying in his bed with injury on his head with blood oozing out. Immediately, he went to the house of Gaonburah Sri Dulasan Daimari (PW5) and informed him. The villagers rushed to the house of Akan Swargiary and took him to the hospital. PW-3 did not, however, state that he had gone to the house of PW-1 and informed about the incident as claimed by the informant (PW-1). 17. Immediately, he went to the house of Gaonburah Sri Dulasan Daimari (PW5) and informed him. The villagers rushed to the house of Akan Swargiary and took him to the hospital. PW-3 did not, however, state that he had gone to the house of PW-1 and informed about the incident as claimed by the informant (PW-1). 17. PW-2 Smt. Kabita Swargiary is the wife of PW-3 Sri Bogadhar Swargiary and she has corroborated the version of her husband by stating that on hearing the hulla from the house of Akan Swargiary that the accused had killed his father-in-law, she came to the house of Akan Swargiary and saw that he was lying in the bed and blood was oozing out from the injury. At that time, Akan Swargiary was alive. The neighbours rushed to the house of Akan Swargiary, apprehended the accused Lakhi Swargiary and took the injured to the hospital in an 108 Ambulance. 18. PW-4 Smt. Mamoni Goyari is another neighbour of the informant and a co-villager. This witness has stated that on the date of the incident, she had heard hullafrom the house of Akan Swargiary and immediately rushed to his house and saw Akan Swargiary was lying on the bed with injury on his head and blood oozing out. PW-4 has also deposed that when she came to the house of the deceased than the accused Lakhi Swargiary was shouting that Akan had already died and that he had assaulted Akan Swargiary with a “hammer”. The neighbours rushed the injured to the hospital. Police came and took the accused to the Police Station. In her cross-examination, PW-4 has stated that the accused Lakhi Swargiary used to create nuisance everyday in drunken condition. But she had not seen as to how the occurrence took place on that day. 19. PW-5 Sri Dulasan Daimary is the Gaonburah of the village and he has deposed that on the date of the incident, at about 2-30/3 p.m. while he was having his meal, Bogadhar Swargiary (PW-3) came to his house and told him that accused Lakhi Swargiary had assaulted Akan Swargiary with a “hammer” and asked him to go there. He immediately rushed to the house of Akan Swargiary and saw that he was lying in his bed with injury on his head with blood oozing out there-from. He immediately rushed to the house of Akan Swargiary and saw that he was lying in his bed with injury on his head with blood oozing out there-from. PW-5 has stated that with the help of the neighbours immeidately, an 108 Ambulance was called and the injured was taken to the hospital. During his cross examination, this witness has stated that he had not seen the occurrence but rushed to the house of the deceased, since it was about one far-long away from his house. This witness has also stated that the accused Lakhi Swargiary used to create nuisance in drunken condition and that he had been staying in the house of Akan Swargiary peacefully by maintaining his family. The villagers used to call the accused as “Dhoko”, which means “Gharjowai”. A “Gharjowai” is treated as a neglected person. 20. PW-6 Sri Janmejoy Swargiary is related to the victim and he is a resident of the same village. PW-6 has also deposed that on the day of occurrence, at about 2 p.m. when he returned home from duty, he had heard hullain the house of Akan Swargiary. Then, he came there and saw the victim lying in the bed with injury on his head. PW-7 Sri Binod Pathak is another villager who went to the Police Out Post on 24/12/2017 on being called by the informant (PW-1). PW-7 had also heard from the PW-1 that the accused had assaulted his father-in-law with a “iron hammer”. 21. PW-10 Mrs. Pallavi Gogoi was the Circle Officer, who had conducted inquest on the dead body. PW-10 had proved her signature in the inquest report Ext.-4. 22. PW-11 Sri Pradip Kumar Choudhury is the I.O. in this case. He has confirmed that on 24/12/2017, while he was discharging his duty as the In-charge of Sarupeta Police Out-Post, one Bijoy Kumar Swargiary (PW-1) had lodged an ejahar. Based on the ejahar dated 24/12/2017, Patacharkuchi P.S. Case No. 448/2017 was registered under Sections 448/326 of the IPC and he was entrusted with the task of carrying out investigation in this case. Upon completion of investigation, he had submitted charge sheet against the accused person. 23. From a meticulous examination of the evidence of the prosecution witnesses, more particularly, PWs 1 and 3, it can be seen that there are some contradictions and inconsistencies in the evidence adduced by the PW-1. Upon completion of investigation, he had submitted charge sheet against the accused person. 23. From a meticulous examination of the evidence of the prosecution witnesses, more particularly, PWs 1 and 3, it can be seen that there are some contradictions and inconsistencies in the evidence adduced by the PW-1. Although, the PW-1 had stated that he was informed about the incident by PW-3, yet, as mentioned above, PW-3 did not say so in his evidence. It is possible that the PW-1, who is also a resident of the same village and related to the victim, had heard about the incident from someone else in the locality and rushed to the house of Akan Swargiary. However, PW-1 has not stated before the Police that on being asked, Lakhi Swargiary told him that he assaulted Akan Swargiary, armed with a “iron hammer”. 24. Likewise, PW-3 Sri Bogadhar Swargiary also did not state before the Police that while he was in his house, he heard hullain the house of Akan Swargiary and also heard the shouting of accused Lakhi Swargiary that he has assaulted his father-in-law. However, from the testimony of PW-2, it is firmly established that the accused was, in fact, shouting that he had killed his father-in-law. It is possible that PW-2 had told PW-3 that the accused was shouting that he had assaulted his father-in-law. Be that as it may, the above omissions and contradictions in the testimony of PWs 1 and 3, in our view, are minor in nature and the same would not have any material bearing in the prosecution case in view of the bulk of other evidence available on record. For the reasons indicated above, we are of the view that there is sufficient evidence to show that the appellant had fatally assaulted his father-in-law leading to his death. 25. For the reasons indicated above, we are of the view that there is sufficient evidence to show that the appellant had fatally assaulted his father-in-law leading to his death. 25. Having held as above, we would now consider the alternative arguments advanced by the learned Amicus Curiae to the effect that the learned trial Court had committed an error in failing to consider the explanation offered by the appellant while recording his statement under Section 313 Cr.P.C. We find from the record that in response to question No. 38, the appellant /accused had stated that on the day of occurrence, he had a quarrel with his wife since he could not earn money and on that very day, his father-in-law Akan Swargiary also abused him in filthy language and slapped him. He then pushed him inside the room and thereafter, left the house. But after some time, Akan Swargiary was found to have sustained injuries inside his house. The appellant had denied his involvement in the alleged occurrence. The aforesaid statement of the accused has, however, not been considered by the learned trial Court while convicting him under Sections 448/302 of the IPC. 26. The duty of the Court to consider the statement of the accused under Section 313 Cr.P.C. has been discussed by the Hon’ble Supreme Court in the case of Reena Hazarika Vs. State of Assam reported in (2019) 13 SCC 289 . After considering various judicial pronouncements on the issue, the Apex Court had made the following observations in paragraphs 19 and 20 of the said decision, which are reproduced herein below : “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 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. 20. Unfortunately neither the trial court nor the High Court considered it necessary to take notice of, much less discuss or observe with regard to the aforesaid defence by the appellant under Section 313 Cr.P.C. to either accept or reject it. The defence taken cannot be said to be irrelevant, illogical or fanciful in the entirety of the facts and the nature of other evidence available as discussed hereinbefore. The complete non consideration thereof has clearly caused prejudice to the appellant. Unlike the prosecution, the accused is not required to establish the defence beyond all reasonable doubt. The accused has only to raise doubts on a preponderance of probability as observed in Hate Singh Bhagat Singh Vs. State of Madhya Bharat reported in AIR 1953 SC 468 observing as follows: ’26. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess the evidence in an appeal here, but because there has been in this case, a departure from the rule that when an accused person puts forward a reasonable defence which is likely to be true… then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get the benefit…..” 27. Following the decision in the case of Reena Hazarika (supra), it has further been held in Parminder Kaur Alias P.P. Kaur Alias Soni Vs. State of Punjab reported in (2020) 8 SCC 811 that any alternate version of events or interpretation proffered by the accused must be carefully analyzed and considered by the trial Court in compliance with the mandate of Section 313 (4) of the Cr.P.C. It has been held that such opportunity is a valuable right of the accused to seek justice and defend himself and, therefore, failure to apply its mind and consider the defence of the accused by the Court would endanger the conviction itself. Unlike the prosecution which would have to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove the alternate version by mere preponderance of probability. It has further been observed that once a plausible version has been put forth by the defence at Section 313 Cr.P.C. examination stage, then it would be for the prosecution to negate such defence plea. 28. In the present case, as mentioned above, the accused has clearly stated that he was slapped by his father-in-law, as a result of which, he had given a push to the deceased and he fell down. It is well established from the evidence of PW-8 that she was living with her family on a plot of land belonging to her father and that the accused used to be taunted by the villagers for being a “gharjawai”. The said fact also finds corroboration from the testimony of PW-5. The evidence adduced by the other prosecution witnesses, more particularly, PWs. 1, 3 and 4 also goes to show that the appellant was not treated well by the villagers of the locality since he was living as a “Gharjawai”, without having any independent source of income. Therefore, it is apparent that the accused used to be subjected to constant humiliation not only by the villagers but also the members of his family which included his wife (PW-8) and his deceased father-in-law. The aforesaid evidence appears to be compatible and consistent with the stand taken by the accused in his 313 statement that his father-in-law has slapped him for not having any income, as a result of which, he had pushed the victim. The aforesaid evidence appears to be compatible and consistent with the stand taken by the accused in his 313 statement that his father-in-law has slapped him for not having any income, as a result of which, he had pushed the victim. It is to be noted herein that the PW-8 has stated that she did not see the iron hammer in her husband’s hand while going inside the room. The above piece of evidence, in our view, would indicate that the appellant did not enter the house in his father-in-law with any weapon and hence, there was no pre-meditation on his part. The incident was, in all probability triggered by an altercation that took place inside the room between the accused and the deceased. 29. The statement of the accused, viewed in the light of the above evidence brought on record by the prosecution side, raises a strong possibility that just before the occurrence, there was an altercation between the accused and the victim. In that altercation, the victim Akan Swargiary had slapped the accused, thereby, provoking him sufficiently. Having lost his sense of control under such provocation, the accused had assaulted the victim. The post mortem report indicates that the deceased had suffered “single” head injury which had caused the death of the deceased. Therefore, it appears to us that although, there was intention on the part of the appellant to kill the deceased, yet, the possibility of grave and sudden provocation leading to the occurrence cannot be ruled out in this case. 30. For the aforesaid reasons, and giving the appellant the benefit of doubt we set aside his conviction under Section 302 of the IPC and convert the same into one under Section 304 Part-I of the IPC. Consequently, the jail sentence awarded to the accused under Section 302 of the IPC would now stand reduced to 10(ten) years of rigorous imprisonment, which period shall be adjusting against the period of sentence already served by him. The remaining part of the sentence awarded by the learned Court below would remain undisturbed. This appeal stands partly allowed. Before parting with the record, we wish to put on record our appreciation as regards the valuable assistance rendered in this case by Mr. The remaining part of the sentence awarded by the learned Court below would remain undisturbed. This appeal stands partly allowed. Before parting with the record, we wish to put on record our appreciation as regards the valuable assistance rendered in this case by Mr. P. Mahanta, learned Amicus Curiae and direct the Registry to make available to him, just remuneration for the services rendered, as per the notified fee of Amicus Curiae. Send back the LCR.