High Court
Case Details
Crl.A. 101/2009 BEFORE HON’BLE MR.JUSTICE A.K.GOEL, CHIEF JUSTICE AND HON’BLE MR. JUSTICE B.D.AGARWAL The judgment dated 30.5.2009 passed by the learned Additional Sessions Judge, Si vasagar in Sessions Case No.41 of 2008 is under challenge in this appeal. By th is impugned Judgment the appellant has been convicted under Section 302 of the I ndian Penal Code and he has been sentenced to undergo Imprisonment for Life and also to pay fine of Rs.3000/- with default stipulation of imprisonment for anoth er 4(four) months. 2.
Legal Reasoning
tatement has been proved as Exhibit-3. 10. After going through the confessional statement we find that the accused was thoroughly warned that he was not bound to give confessional statement and h e was also made known about the implications thereof and the Judicial Magistrate also put searching questions to ascertain that the accused was ready to confess his crime voluntarily. We have already noted earlier that while giving his stat ement u/s 313 Cr.P.C. the accused had repeatedly admitted about assaulting the d eceased. Hence, in our opinion confessional statement can also be taken as corro borative evidence. 11. iculty to hold that the offence was committed by the appellant and none else. 12. Taking into consideration the entire evidence on records we find no diff Now the question is whether the offence of culpable homicide amounted to murder. 12.1 According to the learned counsel for the appellant the offence of murder was committed in a heat of passion and after a brief altercation and quarrel wh en the deceased came to assault his mother. The learned counsel also submitted t hat the appellant had no intention to commit the offence of murder. 13. Autopsy doctor has opined that he found only two blunt injuries; one lac eration on the left temporo parietal region and another bruise and hematoma at t he same place. In the opinion of the doctor the victim died due to coma as a res ult of the injuries, which were ante-mortem in nature. We have noted earlier tha t the deceased succumbed to the injuries after two days. The evidence also discl oses that the deceased was not taken to any hospital immediately and because of this fact the deceased must have come under coma. Besides this, the witnesses ha ve also spoken about the quarrel and altercation. At the same time only a blunt weapon like lathi was used in the crime. Besides this, according to PW-1 the dec eased told him that he was assaulted at random on the head, chest, leg, back and other parts of the body. In our considered opinion had the appellant definite i ntention to commit the offence of murder he would not have assaulted the decease d on leg and back etc. and he would have inflicted lathi blows on the head only. We have also mentioned earlier that the victim survived for two days and it was not an instantaneous death.
Arguments
Heard Mr. G Choudury, learned counsel for the appellant and Mr. Z Kamar, learned Public Prosecutor for the State. We have also gone through the impugned judgment and the prosecution evidence proffered in the trial court. The defense case was that the accused assaulted the deceased with a bamboo stick as the dec eased was attempting to assault his mother. In his statement under Section 313 o f the Cr.P.C. the accused/appellant has admitted repeatedly about assaulting the deceased with a bamboo lathi. Hence, no evidence in defense was given. 3. The gist of the prosecution case is that both the deceased and the accus ed were immediate neighbors. In the night of 31.10.2007 an altercation took plac e in between the mother of the appellant and the deceased whereupon the appellan t appeared at the scene and dealt lathi blows at random. Two lathi blows were gi ven on the head and as a result of these blows the deceased died after two days. 4. FIR was lodged by the brother of the deceased on 2.11.2007. On the basis of this FIR investigation was carried out and after the charge sheet the appell ant has been convicted for the offence of murder. 5. Altogether 9 witnesses were examined by the prosecution. PWs-1 and 5 are the brothers of the deceased; PW-2 was working as a nurse in the garden hospita l ; PW-3 is the VDP Secretary, PW-4 is the Judicial Magistrate, who had recorded the confessional statement of the accused; PW-6 is the autopsy doctor; PW-7 is the Gaonburah; PW-8 is the mother of the accused and PW-9 is the Investigating O fficer. 6. The mother of the accused/appellant herself has admitted about the compl icity of her son in the offence. However, she has deposed that her son/accused d ealt lathi blows upon the deceased since the deceased had come to their quarter giving a life threat to her, brandishing a dao. 7. PWs- 1, 2 and 3 had the occasion to interact with the deceased personall y. On being enquired the deceased himself told them that he was assaulted by the appellant, Ratia. PW-1 has further elaborated the dying declaration of the dece ased by deposing that according to the deceased a quarrel and fight had taken pl ace with the appellant. PW-2 has also admitted in chief-examination that on bein g enquired the accused told her that he had beaten the deceased Sukra as the lat er was creating nuisance after taking liquor. This witness is also the immediate neighbour of the deceased. PW-3 has also spoken about the quarrel in between th e appellant and the deceased, preceding the physical assault upon the deceased. 8. The deposition of PWs-5 and 7 are not very relevant inasmuch as they hea rd about the incident from other witnesses. However, the testimony of PWs-1, 2 a nd 3 could not be impeached to any extent regarding the complicity of the appell ant in the offence. 9. In addition to the aforesaid oral evidence of the brothers of the deceas ed and the co-villagers, we also notice that the accused had given confessional statement before a Judicial Magistrate. Though the learned Additional Sessions J udge has rejected the confessional statement on the ground that since the accuse d was in police custody there is every possibility of putting pressure for makin g confessional statement. Besides this, in the opinion of the trial judge statut ory warnings were also not given to the accused. However, the Judicial Magistrat e (PW-4) has deposed that the accused was produced before her on 4.11.2007 and t he accused was sent to jail for reflection. According to the Judicial Magistrate confessional statement was recorded only on the next day and the confessional s
Decision
14. For the foregoing reasons we hold that the offence was committed in the midst of quarrel without any premeditation. Hence, Exception- 4 to Sec-300 IPC i s applicable. We further hold that neither the appellant had intention to kill t he deceased nor had the intention or knowledge about inflicting fatal injury. 15. In view of the above the conviction of the appellant is converted from S ection 302 IPC to 304 Pt-II of the IPC. Resultantly the substantive sentence is also reduced to rigorous imprisonment for 7(seven) years. However, the amount of fine and default sentence is maintained, as awarded by the trial Court. Section 357-A of the Code of Criminal Procedure, 1973 imposes an obligat 16. ion upon the State Government to pay compensation to the victim’s family. Accord ingly, as an interim compensation we hereby award an amount of Rs.1,00000/- ( O ne Lac) to the victim’s family. The Government of Assam is directed to pay compensation amount of Rs. 1, 17. 00,000/- (Rupees One Lac) only to the family members of the victim. The Governme nt shall deposit the compensation amount in the office of the learned Sessions J udge, Sivasagar within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the family members of the victim on proper identification and after obtaining proper receipt. 18. eal stands dismissed. With the aforesaid modifications in the conviction and sentences the app