High Court
Case Details
Crl.A. 149/2009 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA AND HON’BLE MR JUSTICE P.K.SAIKIA (P.K Saikia,J) This appeal is directed against the judgment dated 24.07.2009, passed by learne d Sessions Judge, Golaghat in Session Case No.65/2007 convicting accused/appell ant Shri Dwipen Das of offence under Section 302 IPC and sentencing him to suf fer imprisonment for life and to pay a fine of Rs. 3,000/-, in default, R.I for another 3 months.
Legal Reasoning
2. Being aggrieved by and dissatisfied with the aforesaid judgment, Sri. Dwip en Das @ Dipan Das, here-in-after referred to as the accused person, preferred t his appeal citing several infirmities in judgment, impugned. 3. The facts which have emerged from the judgment, under challenge, in brief , are that on 07.03.2007 at about 4:00 P.M. while one Smti. Puheswari Das, was s itting in the courtyard of her daughter Smti. Jonali Das, Smti. Rongili Das (PW -5) came thereto running and crying (cid:28)I am dying (cid:29), (cid:28)I am dying (cid:29). Smti. Rongili Da s was hounded by the accused person with a Naga dao in his hand. On arriving at the house of Smti. Jonali Das (PW 4), Smti. Rongili Das entered into a room of t heir house and bolted it from inside. 4. The deceased enquired the accused as to why he was chasing Rongili Das. The enquiry, so made by the deceased, angered the accused person so much so that he gave a blow with a dao in his hand on the head of Puheswari Das. On being so hit, Puheswari Das fell down on the ground in the courtyard of her daughter Smt i. Jonali Das. She was immediately taken to Golaghat Civil Hospital where she br eathed her last. An FIR to that effect was lodged with O/C Golaghat Police Stat ion by one Lugen Das on 7th March, 2007 itself. On receipt of the FIR, O.C., Golaghat Police Station registered a case v 5. ide Golaghat P.S Case No 103/2007 u/s 302 IPC and ordered one Sri. Prabin Ch. Da s, S.I of police, to take up the investigation. Being so entrusted with the inve stigation, Sri Das visited the place where the dead body was found, conducted an inquest on the dead body, sent the same to hospital for post mortem examination , prepared a sketch map of the P.O., arrested the accused person during the cour se of investigation, did other needful and on conclusion of investigation, Sri D as submitted the charge-sheet under Section 302 IPC against the accused person a nd sent him to the court to stand his trial. 6. The learned Magistrate, before whom charge sheet was so laid, committed the case to the Court of Sessions at Golaghat since the offence u/s 302 IPC is e xclusively triable by Court of Session. On receipt of the case on commitment, a nd after hearing the learned counsel for the parties, learned Sessions Judge, G olaghat framed charge under section 302 IPC and charge, so framed, on being rea d over and explained to the accused person, he pleaded not guilty and claimed to be tried. 7. During trial, the prosecution has examined as many as 10 witnesses includi ng the Medical Officer and the I/O. Statement of the accused person u/s 313 Cr. P.C was recorded. His plea was of denial. He, however, declined to adduce any ev idence of his own. The learned Sessions Judge, on conclusion of trial and on he aring the arguments, advanced by the learned counsel for the parties, convicted the accused person of offence u/s 302 IPC and sentenced him to punishment as
Legal Reasoning
aforesaid. It is that judgment which has been assailed in the present appeal. 8. Mr. N.N. Upadhaya, learned counsel for the appellant, has submitted th at on the materials on record, the learned trial court could not have convicted the accused of offence u/s 302 IPC. Rather, he ought to have been convicted the accused u/s 304 Part II IPC since the deceased accidentally come in the way of t he accused person who was running after one Rongili Das with whom he had some pr oblems and hit her in the heat of moment. The fact that the accused administered only one blow on the victim which occasioned to her death makes such a conclusi on inevitable. He, therefore, urges this Court to alter the conviction of the ac cused to conviction u/s 304 Part-II IPC and also to reduce the sentence accordin gly. 9. In support of his contention, he referred us to the decision of the Supr eme Court in the case of State of Rajasthan Vrs. Satyanarayan, reported in AIR 1 998 SCC 206, and in the case of Augustine Saldhana Vrs. State of Karnataka, repo rted in (2003) 10 SCC 472 as well as the decision of this court rendered in the case of Jaharul Islam Vrs. State of Assam reported in 2012(2) GLT 498. 10. In the case of Augustine Saldhana Vrs. State of Karnataka (supra), Suprem e Court Cases 472 held as follows :- (cid:28) 15. The ingredients of clause (cid:28)thirdly (cid:29) of section 300 IPC were brought out b y the illustrious Judge in his terse language as follows: (AIR p. 467, Para 12) (cid:28)12. To put it shortly, the prosecution must prove the following facts Before it can bring a case under section 300 ’thirdly’ First, it must establish, quite objectively, that a bodily injury is present. Secondly, the nature of the injury must be proved. These are purely object ive investigations. Thirdly, it must be proved that there was an intention to inflict that par ticular body injury, that it is to say, that it was not accidental or unintentio nal, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described ma de of the three elements set out above is sufficient is to cause death in the or dinary course of nature. This part of the enquiry is purely objective and infere ntial and has nothing to do with the intention of the offender (cid:29). 17. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause (cid:28)thirdly is now ingrained in our legal system and has become part of the rule of law. Un der clause (cid:28)thirdly (cid:29) of section 300 IPC, culpable homicide is murder, if both th e following conditions are satisfied i.e.: (a) that the act which cause death is done with the intention of causing death or is done with the intention of causi ng a bodily injury; and (b) that the injury intended to be inflicted is sufficie nt in the ordinary course of nature to cause death. It must be proved that there was an intention to Inflict that particular bodily injury which, in the ordinar y course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to inflicted. 11. This Hon’ble Court in the case Jaharul Islam (Md.) Vrs. State of Assam ( supra) held as under :- (cid:28)28. There is no fixed standard or criteria in getting provoked. Provocat ion if the cause which ignites the inner feeling of the mind temporarily, in giv en situation, prompting to do an act. The act is the outburst of the inner feeli ng of the mind of the person so provoked. It is the reaction of the provocation. Provocation relates to mental status and the prevailing circumstances etc. the situation in which a person gets provoked may vary from person to person. The de gree or intensity of provocation also may vary from person to person depending o n the mental condition of the person and the attending circumstances.
Decision
29. In view of the above, considering entire aspect of matter, it cann ot be ruled out that the refusal of his mother, i.e. the deceased to give him mo ney, made, the said son angry as a result of which, failing to fulfill his desir e to get money, as expected, he lost his cool and provoked to assault his mother , thereby causing injury to her. Admittedly, the demand made by the appellant an d refusal of the mother to give money resulted a quarrel between the two. 30. Law is well settled that, in criminal case, if there exists two views i.e. one going in favour of the prosecution and the other in favour of the accu sed, the benefit should go to the accused. 31. The medical evidence reveals that the injured sustained two injuries o n the right skull. The said injuries, as revealed from the prosecution witness, do not appear to be inflicted cruelly/brutally or in any unusual manner. The inj uries were the normal injuries, inflicted with a sharp cutting weapon (i.e. dao) . It also transpires that, on being refused by the deceased to give money, the a ppellant had inflicted the injuries. Hence, it does not reveal that the injuries were caused taking any undue advantage. 32. In view of the above discussion, it can be safely held that the app ellant, without premeditation suddenly, in the heat of passion out of a sudden q uarrel i.e. the quarrel relating to demand of money and refusal of the demand. T here is no difficulty in understanding that the appellant reacted by assaulting his mother in the said process of demanding money. Taking the evidence of PW2 into confidence, it can be found that the app ellant had no intention to cause any injury to his mother and she sustained the injuries due to her intervention between the two brothers. Therefore, the offenc e committed by the appellant falls under the 4th exception of the section 300 IP C. Hence, we are inclined to hold that the appellant committed the offence of cu lpable homicide not amounting to murder. Thus, it is found that he committed the offence under section 304 IPC and not under section 302 IPC. Therefore, his conviction under section 302 IPC cannot be maintained an d the same is liable to be modified to one under section 304 IPC (cid:29). 12. Controverting the argument, so advanced from the side of appellant, M s. B.Bhuyan, learned Additional PP submits that the judgment, rendered by trial Court is founded on indisputable evidence which unmistakably demonstrates that t he accused had killed the deceased and he did so with the intention of causing h er death. The site of wounds, nature thereof, weapon used in inflicting such wou nds, coupled with the fact that deceased died soon after she was subjected to su ch wounds, serve to show that very intention of the accused in inflicting such, serve to show that very intention of the accused in inflicting the wound on her head was to cause her death. 13. More importantly, there is absolutely nothing on record to show that the accused had to kill the deceased either in heat of passion on a sudden quarr el with the deceased Smti. Rongili Das or he had to kill the aforesaid person on receiving grave and sudden provocation from any of those persons which deprived the accused of power of self control. She, therefore, submits the Court to dism iss the appeal on affirming the judgment, rendered by the trial court. 14. We have carefully considered the rival submissions, advanced by the lear ned counsel for the parties having regard to the materials on record as well as the judgment under challenge. However, before we proceed further, we find it nec essary to have a brief review of evidence on record and the evidence of the Doct or is first taken up for consideration. The Doctor who performed autopsy on the body of the deceased at Golaghat Civil Hospital on 08.03.2007 was one Dr. Syed Sajadur Rahman and he was examined as PW.7. According to the doctor, on 08.03.2007, on examining the body of one Pus 15. heswari Das, he found the following:- (cid:28)Rigor mortis present. Injuries 1) An incised wound is present on the left side of the head. 2) An incised wound over left ear at ear junction between the upper 1/3rd and lower 2/3rd extending across the left temporal aspect of scalp upto the left occipital border. 3) An incised wound over left temporal bone, size-8 cm long. 4) Membrane is incised. 5) An incised wound over the left temporal to be of brain, size-6 cm long x 3 c m deep. Brain contains fluid and clotted blood. 6) All findings are ante mortem in nature. 7) Other organs are healthy. 8) Time since death is less than 36 hours (cid:29). 16. Doctor further opines that the death of the deceased was due to haemorrhage and shock as a result of head injuries inflicted by a sharp weapon. He proves t he post mortem examination report as Ext.4. The evidence of doctor, therefore, c learly establishes that the death of the deceased was homicidal in nature and th e ante-mortem wounds on her body occasioned her death. 17. Smt. Jonali Das (PW. 4) and Smti. Rongili Das (PW 5) are the eye witnesses t o the incident under consideration. According to PW.5, on the fateful day, at ab out 4:00 P.M., she was returning home after attending a feast. On the way, she m et accused Dipan Das. The moment, she met him, the accused started chasing him w ith a dao in his hand. On being so chased, she rushed to the house of Jonali cry ing. The accused too arrived at such place running after her. The deceased Pushe swari Das inquired him as to why he was running after her. 18. Such questioning angered him so much so that the accused gave a dao blow a nd on seeing it, she entered into one of the rooms of the house of PW 4 and bolt ed it from inside. However, the accused started hitting on the doors which frigh tened her so much so that she started crying in fear and desperation. In the me antime, Jonali Das also raised hue and cry seeing the conduct of accused person. 19. On hearing the hue and cry raised by PW 5 and Jonali Das people from the n eighborhood started to gather at such place and taking advantage of such situati on, she (PW 5) fled from such place. Later on, she came to know that an injured Pushewari Das was taken to hospital but she died in the hospital same day. In h er cross examination, she stated that after the alleged incident, she came out o f the house of Jonali and took shelter in a nearby sugarcane cultivation. 20. PW. 4 is a house wife who deposes that on the fateful day at about 4:00 P. M, she was twisting the thread around a wheel in her courtyard. Her mother was t here with a tray of bettlenut in her hand. At that point of time, one Rongili Da s came to their house running and crying (cid:28)I am dying (cid:29), (cid:28)I am dying (cid:29). Moments the reafter, the accused too came there armed with a ’Naga dao’. On arriving at thei r house, PW.5 quickly entered into one of the rooms of their house and bolted it from inside. Meanwhile, the accused hit his mother with a dao on her head for w hich her mother fell down on the ground. 21. On seeing her mother being injured by the accused person, she started cr ying for help. The accused, however, started chasing her and her daughter for wh ich she quickly left her house taking her daughter with her. On hearing such hu e and cry, the elder brother of the accused and her sister-in-law came there and took the accused from the place of occurrence. Shri Lugen Das and his wife Kam ala Das too came to such place and took her mother to Golaghat Civil Hospital wh ere she died little later. In her cross examination, she stated that a road sepa rated her house from the house of the accused person. 22. PW. 1 is Sri. Lugen Das. According to him, the deceased was his mother. O n the fateful day, at about 4:00 P.M., there was a hue and cry in the house of h er sister. When he learnt that his mother was hit and injured by the accused, he immediately rushed thereto and found the accused standing in the verandah of th e house of PW 4 (Jonali Das) with a dao in his hand. He also found his mother ly ing in an injured condition at such place. When he inquired him as to why he cut his mother, he rushed towards him menacingly for which he left such place raisi ng hue and cry which brought his elder sister and other persons to such place an d they took the injured to Golaghat Civil Hospital. 23. However, his mother died soon after her arrival at Golaghat Civil Hospita l. He, thereafter, lodged an FIR which is proved as Ext.1. He went on to say tha t on being so informed, police came to the hospital and held the inquest over th e dead body and prepared a report in that connection which he proved as Ext. 2. Police also seized a Naga dao from the accused person which he used in injuring his mother on the strength of the seizure list which he proved as Ext.3. In his cross examination, he has stated that at the time of incident, he was returning home after attending a feast in the house of one of his friends. He admitted in his cross examination, he did not saw the incident in question. 24. PW.2 is Sri Babul Das who is found saying that the incident in questio n took place on the fateful day at about 3:00 P.M. At that time, he was in the o ffice. His wife informed him over phone that Dipan Das cut his grandmother Pushe wari Das. He immediately came home but learnt that the injured was already taken to the hospital. In the meantime, he got the information that his grandmother w as no more. Police was informed and on being so informed, Police visited the P.O ., also came to the hospital and held inquest over the dead body. In that connec tion, police prepared an inquest report which he proved as Ext. 2. In his cross examination, he has stated that the deceased was her aunt (wife of the father’s elder brother). 25. PW 6 is Sri Kamala Das who is a housewife. According to her, the decease d is her mother-in-law. On 22nd day of Fagun, corresponding to Feb/March 2007, a t about 4:00 P.M. the incident in question occurred. On that day, she was in he r house, she heard hue and cry in the house of Jonali Das. She immediately rushe d to such place and on her way, she met her brother-in-law Lugen (PW 1) who told her that the accused cut and injured Puheswari Das. She was also told that the accused also tried to attack PW.1. 26. When she arrived at the place of occurrence, she also saw the accused jumping on the road with a ’dao’ in his hand. In the meantime, people came to t he place of occurrence and took the injured to the hospital. She also saw a good amount of blood in the courtyard of Jonali Das. She found that one of the ears of the victim was almost severed from the head. There was a huge cut wound on he r head and brain substances were seen coming out. In her cross examination, she admitted that she did not see the incident. 27. PW 3, Smti. Konmai Das, PW 8, Raju Das and PW 9 (Lakhidhar Das) are the witnesses who heard about the incident under consideration from the other perso ns. While PW 3 claims that she took part in taking the injured to hospital, PW 8 is found saying that he was present when the police conducted the inquest on th e body of the deceased. According to him (PW 8), Ext. 2 is the inquest report wh erein Ext.2(3) is her signature which she put as being the witnesses to the inqu est proceeding. 28. PW. 10, Sri Prabin Ch. Das is the S.I. of Police. According to him, on 07. 03.2007, he was posted at Golaghat Police station. On that day, on receipt of an Ejahar, lodged by one Lugen Das, O/C, Golaghat Police Station registered a case and entrusted him to investigate the same. On being so entrusted, he came to Go laghat Civil hospital, held an inquest on the body of the deceased, sent it for post mortem examination and recorded the statements of the witnesses. He also ar rested the accused. On the same day, he seized the dao used in commission of the offence in question on being shown and produced by the accused person on the st rength of seizure list as Ext.3. 29. He also prepared a sketch map of the place of occurrence and on conclus ion of the investigation, he submitted the charge sheet u/s 302 IPC against the accused person. The inquest report which he prepared in connection with aforesai d case was proved as Ext. 2. In his cross examination, he has stated that he fou nd the doors of the house where alleged incident occurred being broken. He also found blood marks in the courtyard of the house of the PW 4. He also stated tha t the witnesses, examined by him, told him that there is a dispute between the a ccused and the deceased over some property. 30. Above being the evidence on record, it remains to be seen how far such e vidence makes out the charges brought against the accused person. We have alread y found that the star campaigners from the side of prosecution are PW 4 and PW 5 since they are closely associated with the incident under consideration right f rom the moment one. On a conjoint reading of the evidence of these PWs shows t hat on the fateful day, in the afternoon, one Rongil Das came to the house of PW 4 running and uttering (cid:28)I am dying (cid:29) (cid:28)I am dying (cid:29) and she was followed by the ac cused with a dao in his hand. As soon as Smti. Rongili Das entered the compound of Jonali Das, her mother enquired the accused as to why she was after a woman f or which the accused planted a dao blow on her head which caused her to fell dow n on the ground and slipped to swoon quite instantaneously. 31. It is also evident from their evidence that in the meantime, the accu sed turned his attention to PW 5 who by that time took shelter in one of the roo ms of the house of PW 4 and bolted it from inside. Since the accused kept on hit ting the doors of the room where said Rongili Das was hiding there, then, it cau sed terrible fear in PW 5 for which she as well as PW 4 started raising hue and cry in the pitch of their voice which brought the people from nearby place to th e house of PW 4. Such person includes the elder brother and sister-in-law of the accused person. 32. The evidence, so rendered by PW 4 and PW 5 finds support on material poi nts from the testimonies, rendered by other PWs, particularly PW 1 and PW 6 in p articular since they too are heard saying that on arriving at the P.O., they fou nd the accused at such place of occurrence threatening one and all with a dao in his hand. More important, an armed accused person even ran at the PW 1 with a d ao in his hand uttering that he would also kill PW 1. We have also found that t he evidence, so rendered by PWs, remains unshaken despite they being subjected t o cross examination. 33. On the perusal of the evidence of PW 10 (I.O.) , reveals that on arr iving at the P.O., the I.O. found blood marks on the courtyard of house of the P W 4. He also noticed the doors of her house being damaged. The evidence of the I .O. further shows that he seized a dao on being shown and produced by the accuse d person on the strength of seizure list, Ext. 3. Thus, the evidence rendered by PW 10 provides more and more support to the prosecution case that accused hit t he deceased at the place of occurrence which occasioned her death in the hospita l same day. 34. Even the evidence of the doctor supports the testimonies of ocular witnes ses as far as site of the wound, nature thereof, weapon used in causing such wou nds as well as the time of infliction of such wound on the deceased since he too opined that the death of the deceased was homicidal in nature and the injuries on her head was caused by sharp object which occasioned her death on or around 0 7.03.2007. 35. Above being the revelations, projected by the evidence on record, t here cannot be any escape from the conclusion that on 07.03.2007 at about 4:00 pm., the accused came to the house of the PW 4, hit the deceased on her head wi th a dao inflicting deep cut wounds on her head for which she died in the Golag hat Civil Hospital same day. Thus, there cannot be any escape from the conclusio n that the accused and none else, hit and killed the deceased on 07.03.2007. Now, the question is whether for such killing, the accused could be held respon sible for committing offence u/s 302 IPC. 36. We have already found that while the Addl. PP contends that on the materi als on record, this Court is duty bound to conclude that the accused needs to be convicted of offence u/s 302 IPC, Mr. N. N Uppadhay, learned counsel for the ap pellant, painstakingly urgues that on the materials on record the learned trial court could not have convicted the accused of offence u/s 302 IPC. It could have convicted the accused u/s 304 Part-II IPC since the case is clearly covered by proviso 1 and 4 of the Section 300 IPC. 37. In order to get the benefit of provisions incorporated in exception 1 an d exception 4 to Section 300 IPC, the accused must satisfy the conditions incorp orated therein. In order to take the benefit of Exception 1, above, it needs to be shown that the accused whilst deprived of power of self control by grave and sudden provocation causes the death of a person who gave the provocation or caus es death of any other person by mistake or accident. 38. On the other hand, in order to get the benefit of Exception 4 to Section 300 IPC it needs to be shown that the accused killed someone without premeditat ion in a sudden fight in the heat of passion upon sudden quarrel and without off ender having taken undue advantage or acted in a cruel or unusual manner. Unfort unately, none of the aforesaid conditions stands fulfilled in the present case t o take the case of the accused within the four walls of exceptions 1 and 4 to th e Section 300 IPC so as to convict the accused-appellant u/s 304 IPC. 39. We have already found that on the fateful day in the afternoon, on seeing PW.5 in front of his house, the accused started chasing her with a dao in his h and. Being faced with such horrible situation, she rushed to the house of the de ceased in order to save her from the murderous assault of accused person. Howeve r, when the deceased questioned him as to why he was chasing a woman, he adminis tered a dao blow on her head which occasioned her death within hours of inflicti on of such wounds. 40. Thus, these revelations speak loud and clear that nothing on record to show that on the afternoon in question, Rongili or for that matter, the deceased had provoked the accused in any manner whatsoever requiring him to assault an o ld lady so brutally. Nor was there any evidence on record to show that the accus ed had to assault the deceased for his involving in a sudden fight in heat of pa ssion upon a sudden quarrel. Thus, under no circumstances, the present case can be brought either under Exceptions 1 or under Exception 4 of Section 300 IPC. 41. The learned counsel for the accused-appellant pointed out that the decea sed was subjected to one blow only and this is, according to learned counsel, a clear pointer to the fact that the accused needs to be convicted only u/s 304 IP C. Such an argument has no basis. Our forgoing discussion has made it more than clear that the accused hit and injured the deceased in a most brutal way without there being any necessity to assault an old woman. 42. Worse still, even after attacking and injuring deceased without any rhym e and reason, he kept on threatening one and all who came his way. PW 1 and PW 4 luckily escaped being hit and injured by the accused person. These are all forc eful testimony to the fact that the accused hit, injured and killed the deceased on 07.03.2007 intentionally. That being so, the plea of the learned counsel for the accused that on the materials on record, the accused should be convicted u/ s 304 IPC falls flatten on its face. For the same reason, the decision relied on by the learned counsel are found inapplicable to our instant case. 43. In the result, it is found that the learned trial court has rightly convic ted the accused u/s 302 IPC and has punished the accused-appellant in accordance with law. Being so, the same invites no interference from this Court of Appeal. 44. erit. 45. Accordingly the present appeal is dismissed same being found devoid of m Return the LCR.