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2022 DIGILAW 31 (MEG)

Kimland Thyrniang v. State of Meghalaya

2022-03-01

SANJIB BANERJEE, WANLURA DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The appellant has been convicted under Section 302 of the Indian Penal Code, 1860 and sentenced to life imprisonment. The appellant has also been fined Rs. 50,000/- for the commission of the offence. 2. The principal ground urged on behalf of the appellant in questioning the propriety of the judgment of conviction of January 14, 2021 is that only the relatives of the victim came forward to complain or testify against the appellant, though the incident, which is said to have taken place on December 28, 2013 at about 11 pm, was in course of a village function on the premises of the Catholic Church at Mawkohram village when the entirety of the village had congregated to witness a post-Christmas theatre performance. 3. It is also submitted on behalf of the appellant that there are several other discrepancies, including the alleged murder weapon not showing any sign of blood in course of its forensic examination, several of the witnesses trying to embellish their original statements and the contradictions between the oral evidence of several of the prosecution witnesses. In particular, it is submitted on behalf of the appellant that a key witness who is supposed to have removed the victim to a nearby house after he suffered the injury, may not have been present at the place of the occurrence or in the village on the relevant date. The appellant also seeks to point out the discrepancies in the oral evidence of the prosecution witnesses as to the particular house where the victim was carried after he suffered the injury. The most significant point raised on behalf of the appellant is that it is inconceivable that the gathering whereat the entirety of the village may have been present would not throw up any witness to corroborate the version rendered by the relatives of the victim or that a person would be able to approach such a gathering with a dangerous weapon, commit the crime and run away, without being apprehended. 4. 4. The submission of behalf of the appellant is that the investigation was not conducted in an appropriate manner and that since the victim was a prominent member of the village, having been Sordar previously, and one of the brothers of the victim was the head at the time of the commission of the offence, the investigating agency merely took whatever was said by the relatives of the victim as gospel truth without making any attempt to ascertain the veracity thereof. The appellant says that the investigating officer ought to have made an attempt to obtain statements from the other villagers as to the incident or as to whether they had witnessed the same. The appellant submits that in such circumstances, when even the complainant, in the complaint lodged a day after the commission of the offence, did not indicate that she had seen the assailant, the purported admission of the appellant in course of his examination under Section 313 of the Code of Criminal Procedure, 1973 should not be given the kind of weightage as was accorded to it by the trial court as the only basis for the conviction. 5. The incident, as noticed above, took place at or about 11 pm on December 28, 2013. There is little doubt as to the incident having taken place or as to the description of the injury or the cause of death of the victim. However, there are anomalies even in the post-mortem report as to when the body was brought for examination and the date appended at the foot of the report. But what is of importance is that the description of the nature of the injuries suffered corroborated the version of the incident rendered by the complainant and the other witnesses and even though the alleged murder weapon may have been shown to the medical examiner and may have influenced the medical examiner, in response to a question put to such medical examiner in course of his cross-examination, he clearly responded that even if the pick-axe had not been shown to him, he would have indicated that the nature of injury was such as would be caused by a sharp weapon. The description of the injury in detail matches with a person being hit by a pick-axe on his right temple. The description of the injury in detail matches with a person being hit by a pick-axe on his right temple. Since the injury was to the right temple, a right-handed person hitting the victim from behind would be able to inflict such injury and, to such extent, the description of the incident by the complainant, an elder sister of the victim, cannot be flawed. 6. It has come out in course of the oral evidence adduced at the trial - and appropriately appreciated in the impugned judgment of conviction by the trial court - that though there was the temporary construction of the pandal in which the performance was being rendered, it may have been dark outside in the cold winter evening and only the stage may have been lit up and the spectators' side of the pandal may have been in darkness or semi-darkness. Both the complaint and the statement rendered by the complainant under Section 164 of the Code indicated that the complainant was sitting next to her brother, the victim, and that she heard a loud noise and noticed that her brother had been assaulted and blood was all over her. She even claimed to have lost consciousness. While it is clear that the complainant may not have seen the offence being committed, even though she was sitting next to the victim, and the complainant may not have even seen the assailant, that would not be surprising, if one can appropriately imagine the scene where a play is being performed on a makeshift stage within an ordinary village pandal with only the stage being lit and the rest of the area being in darkness. 7. It also comes through from the evidence that the victim and the complainant were sitting at one edge of the pandal and, in such circumstances, it was possible for the assailant to approach the victim in a stealthy manner from the side, commit the offence and retreat before the others reacted. 8. Evidence is not read with a fine toothcomb to find out the discrepancies and the contradictions therein. The entirety of the oral evidence may be read or heard, and the overall impression that it renders must be appreciated. 8. Evidence is not read with a fine toothcomb to find out the discrepancies and the contradictions therein. The entirety of the oral evidence may be read or heard, and the overall impression that it renders must be appreciated. There are the usual instances of imperfect recollection, the attempt at embellishment and, sometimes, even an element of motive to improve upon or detract from the previous statement rendered by the same person. These are usual and, when witnesses with little or no education are examined and the evidence is crassly translated, there are bound to be some discrepancies in the manner of description or in the details. Indeed, if the description is too perfect, that should raise some suspicion. 9. Upon the prosecution witnesses being examined, the Trial Judge summarised the evidence of each of the witnesses and sought the reaction of the appellant thereto. It is such reaction of the appellant and his answers to the questions put by the trial court that establish the fact of the commission of the offence by the appellant herein and his motive therefore. In fact, the aspect of the motive also comes through from the statements of some of the prosecution witnesses. The victim had an affair with the appellant's wife or was in a continuing affair with the appellant's wife, and the appellant could not bear the same. The appellant clearly volunteered to state, in course of his examination under Section 313 of the Code, that he had found the victim and his wife together earlier on the day of the incident and, in a fit of rage, he committed the offence. 10. In response to the first question put to the appellant as to whether the appellant had appeared from behind when the play was being performed 'and suddenly hit the deceased with a pick axe on the right temple...', the appellant's response was: 'It is a fact.' In answering some of the later questions, the appellant's reaction was not so terse and he was candid in his elaborate confession. 11. Upon the trial court summarising the testimony of PW-3 and asking the appellant as to the veracity of the relevant witness' assertion that the appellant 'suddenly... 11. Upon the trial court summarising the testimony of PW-3 and asking the appellant as to the veracity of the relevant witness' assertion that the appellant 'suddenly... came from the back and poke his deceased uncle on his right temple with a pick axe and he then cried for help, they chased you but could not catch you...', the appellant replied: 'It is a fact'. The appellant went on, while responding to one of the subsequent questions, to volunteer that 'It is a fact that I fled away from the scene as I am scared and they chased me...'. 12. The investigating officer was examined as PW-8 and he claimed that during the investigation the appellant had admitted his guilt and suggested that since the victim committed adultery with the appellant's wife and attempts at stopping the affair had failed, the appellant had taken the extreme step. The summary of the testimony of the investigating officer was presented by the trial court to the appellant and the appellant's elaborate response thereto was as follows: 'It is a fact that my wife committed adultery with the deceased and despite trying my best to settle down the matter instead the victim threatened me with dire consequences and my family was turned apart but I did not resort to kill the victim and the incident took place when I saw my wife together with the deceased on that fateful night and out of anger I happen to hit the deceased with the pick axe.' 13. The admission of the appellant was clear and without hesitation. Since there can be no doubt as to the incident, notwithstanding the seemingly discordant statements of some of the prosecution witnesses, and since admission is the best form of proof, it was established beyond reasonable doubt that the appellant had committed the offence resulting in the severe injury to, and subsequent death of, the victim. 14. There has been no attempt by the appellant to retract from the statements attributed to the appellant by the trial court. In the absence of the appellant questioning the validity of the recording, he has been rightly found guilty on his admission. No case is made out as to why the appellant would admit to his guilt despite the appellant not having committed the offence. 15. In the absence of the appellant questioning the validity of the recording, he has been rightly found guilty on his admission. No case is made out as to why the appellant would admit to his guilt despite the appellant not having committed the offence. 15. In the light of the material that was before the trial court, there is little to detract from the judgment of conviction impugned herein or any rational reason to interfere therewith. There was motive for the appellant to have committed the offence. He clearly spelt out such motive and admitted to the commission of the offence. As a consequence, the punishment meted out by the trial court seems to be adequate and appropriate and warrants no interference at this level. 16. Accordingly, Criminal Appeal No. 5 of 2021 is dismissed. A copy of this judgment should immediately be forwarded to the appellant, free of cost.