High Court
Case Details
Crl.A. 51/2010 BEFORE THE HON’BLE CHIEF JUSTICE MR. A. K. GOEL THE HON’BLE MR. JUSTICE B. D. AGARWAL ( B.D.Agarwal, J)
Legal Reasoning
This appeal under Section 378 of the Code of Criminal Procedure, 1973 is at the instance of the State, challenging the legality and correctness of the judgment and order dated 11.8.2009, passed by the learned Additional Sess ions Judge, Cachar, Silchar in Sessions Case No.76 of 2004, whereby the learned trial judge has acquitted all the three accused persons from the offence under S ection 304 r/w Section 34 of the Indian Penal Code, 1860. 2. We have heard Sri Z Kamar, learned Public Prosecutor for the Sta te and Sri SP Choudhury for the respondents. We have also gone through the impug ned judgment as well as the prosecution evidence, proffered in the trial court. We have also taken note of the statements made by the accused persons u/s 313 Cr .P.C. 3. The gist of the prosecution case is that both the deceased and t he accused persons had paddy fields at the place of occurrence with common bound ary. In other words, paddy fields of both the parties were contiguous to each ot her. On 23.7.2002 at about 8.30 in the morning the deceased and his son Karuna w ere draining out excessive water from their plot of land and the water was being released in the paddy field belonging to the accused Manindra Suklabaidya. Sinc e this act of the son of the deceased was damaging the paddy cultivation of the accused an altercation took place initially between the accused Manindra and the son of the deceased, Karuna. Immediately the deceased also intervened in the al tercation and he was assaulted with a spade. 4.
Legal Reasoning
The first FIR was lodged by the deceased himself on the date of the incident itself, naming all the three respondents as the accused persons. Th is FIR was registered as Dholai PS Case No.134 of 2002 U/Ss 447/326/34 IPC and a fter about seven weeks, precisely on 18.9.2002, the injured succumbed to the inj uries at Silchar Medical College. On the death of the injured his brother (PW-1) lodged another FIR. On the basis of this FIR Section 302 IPC was added with the permission of the concerned CJM. Since a charge sheet on the basis of the origi nal FIR was already submitted earlier it necessitated submission of a supplement ary charge sheet U/Ss 447/324/323/302/34 IPC. 5. Both the charge sheets were finally clubbed together and the acc used persons were tried for committing an offence u/s 302/34 IPC. After full len gth trial all the three accused persons have been acquitted by the impugned judg ment. The learned P.P. submitted that for the same incident accused Ma 6. nindra Suklabaidya had also lodged a counter case being Dholai PS case No. 133 o f 2002 U/s 147/149/447/323 IPC and this being the admitted position the learned Sessions Judge ought not to have acquitted the accused persons out rightly. The learned P.P. also argued that PW-5 was present at the scene being the son of the deceased and his ocular testimony has also been discarded without cogent reason s. According to the learned counsel in addition to the ocular testimony there wa s also evidence of dying declaration made by the deceased himself before the I.O . on the date of the incident itself, albeit, in the form of giving his stateme nt u/s 161 Cr.P.C. This statement has been brought on record vide Exhibit-9. N ot only that the deceased had also named all the accused persons as the offender s before PW-1 at the place of occurrence itself. The learned P.P. also cited the Judgment of Hon’ble Supreme Court rendered in the case of Bhagwan Das-vs- SoUP; (2013 Cri.LJ 512) to contend that if a victim dies after giving his statement u /s 161 Cr.P.C. it can be treated as a dying declaration. On these premises the l earned Public Prosecutor urged that the judgment of acquittal should be set asid e and the respondents should be convicted in accordance with law. 7. Per Contra, Sri Choudhury, learned counsel for the respondents v irtually raised a preliminary objection about homicidal death of the deceased. A ccording to the learned defense counsel no credible evidence was placed in the t rial court to hold that the death of Anil Suklabaidya was a homicidal one. Refer ring to the testimony of PW-6 the learned counsel submitted that the injuries su stained by the deceased were simple in nature and, as such, the death of the inj ured nearly after two months cannot be linked with the injuries, allegedly infli cted at the place of occurrence. In fact similar suggestions were also given to the prosecution witnesses during their cross-examination. The learned counsel fo r the respondents also submitted that the trial court has rightly disbelieved PW -5 as an eye-witness to the incident. The learned defense counsel also referred to the judgment of the Hon’ble Supreme Court rendered in the case of Mathai Meth ews -vs-State of Maharashtra reported in (1970) 3 SCC 772 to contend that a judg ment of acquittal can only be interfered with if there is total perversity. 8. At the outset we would like to examine the powers of High Court to alter a judgment of acquittal into a judgment of conviction. In the case of K allu -vs- State of Madhya Pradesh: (2006 CrLJ 799), the Apex Court has culled-ou t the legal principles for upsetting an order of acquittal. The aforesaid author ity has been approved in the case of Chandrappa -vs- the State of Karnataka; 200 7(4) SCC 415. The guidelines are as under: (cid:28)29. Recently, in Kallu v. State of M.P. MANU/SC/0271/2006: 2006 Crl. L.J.799, t his Court stated, (cid:28)While deciding an appeal against the acquittal, the power of the Appellate Court is not less than the power exercised while hearing appeals a gainst conviction. In both types of appeals, the power exists to review the enti re evidence. However, one significant difference is that an order of acquittal w ill not be interfered with, by an appellate court, where the judgment of the tri al court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different vie w is possible. The appellant court will also bear in mind that there is a presum ption of innocence in favour of the accused and the accused is entitled to get t he benefit of any doubt. Further if it decides to interfere, it should assign re asons for differing with the decision of the trial court (cid:29) (Emphasis supplied) (cid:28)30. principles regarding powers of appellate Court while dealing with an appeal agai nst an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or c ondition on exercise of such power and an appellate court on the evidence before From the above decision, in our considered view, the following general it may reach its own conclusion, both on question of fact and of law; (3) Various expressions, such as, ’substantial and compelling reasons’, ’good and sufficient grounds’, ’very strong circumstances’, ’distorted conclusions’, ’ glaring mistakes’, etc. are not intended to curtail extensive powers of an appel late Court in an appeal against acquittal. Such phraseologies are more in the na ture of ’flourishes of language’ to emphasize the reluctance of an appellate Cou rt in interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case acquittal, th ere is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprud ence that every person shall be presumed to be innocent unless he is proved guil ty by a competent court of law. Secondly, the accused having secured his acquitt al, the presumption of his innocence is further reinforced, reaffirmed and stren gthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence o n record, the appellate court should not disturb the finding of acquittal record ed by the trial court. (cid:29) 9. In view of the aforesaid authorities it is clear that the app ellate court can re-appreciate the evidence and there is no fetter upon the High Court to reach to a different conclusion from what has been taken by the trial court and record a judgment of conviction, provided the theory of two reasonable conclusions is ruled out. It is equally true that the High Court should be slow and circumspect to upset an order of acquittal since there is double presumptio n of innocence in favour of an accused after an order of acquittal. Keeping in m ind these legal principles we would now proceed to examine the merit of this cas e. 10. The question whether the death of Anil Suklavaidya was homicidal or natural should not detain us any longer in view of the medical opinion of th e doctor. The Post-Mortem report ’has been proved by the prosecution under Exhib it-7 through PW-8. Though the learned Sessions Judge took an exception that auto psy doctor was not examined by the prosecution but the trial Court equally faile d to notice that Exhibit-7 was introduced in evidence without any objection by t he accused persons. Since the autopsy doctor was not available, the Post-Mortem report was brought into record through another doctor, who was acquainted with h andwriting and signatures of the autopsy doctor. Under Section 294 CrPC, if a do cument is filed by the prosecution in the Court along with the charge sheet and if the genuineness of such document is not disputed the same can be read in evid ence in any enquiry or trial. With the aid of this provision of law also, the Po st Mortem Report has been rightly considered as evidence by the trial Court and there is no difficulty to consider the findings recorded by the autopsy doctor, though he was not personally examined in the Court. In this report, the autopsy doctor noted that he found one depressed comminuted fracture on frontal bone of size 6 cms x 1 cm and the death of the person was due to coma, resulting from th e cranium cerebral injuries. The autopsy doctor has given a firm opinion that th e injury was ante-mortem and homicidal in nature, which might have been caused b y heavy and hard substance. At the same time, PW-8 has ruled out in the cross-ex amination that the injury might have been caused by a sharp cutting weapon, like a split bamboo. In the present case, the deceased was hit by the blunt handle o f a spade, which is in conformity with the autopsy findings. 11. PW-6 is another doctor, who had examined the deceased on the day of the incident itself and found one sharp cut injury on the middle part of the scalp and one abrasion on the chest. In this way, the fatal injury noted by PW- 6 was also found during autopsy and there is no contradiction in this regard. It is true that PW-6 has recorded in his medico-legal report (Ext-4) that the inju ries were simple in nature. However, this opinion was given on the basis of clin ical examination of the deceased while attending him at the initial stage. Be th at as it may, the fact remains that the sharp cut wound on the scalp became fata l after few weeks. The defence theory that the deceased died due to some other d isease is totally out of context and no such opinion was extracted from the doct ors. In view of the findings recorded in the Post-Mortem report we find no hesit ation to hold that the death of Anil Suklabaidya was definitely a homicidal one. Now, the question is whether the culpable homicide amounted to m 12. urder and who committed this offence. For this purpose, we have to look at the o ral evidence of the witnesses. 13. It is true that in the first FIR dated 23.07.2002, it was stated that the accused Manindra had picked up an altercation with the deceased and hi t on his head with a spade. Thereafter, other accused persons came and accused R ana also assaulted him with a spear and accused Chandan assaulted the deceased w ith a fencing post. In this way, overt acts were attributed against all the thre e accused persons. But the doctor (PW-6) had noticed only two wounds on the body of the injured. Hence, the possibility of involvement of 3 (three) persons is r uled out. 14. In the second FIR dated 18.09.2002 also, the accused Manindra wa s named as the prime accused. There was no allegation of any overt act by the ot her two accused persons. PW-1 has also deposed that getting the information of t he incident he went to the paddy field and found the deceased lying in injured c ondition and on being asked the deceased told him that all the three accused per sons had assaulted him with a spade and a lathi. I have already noted earlier th at in the first FIR it was alleged that the deceased was assaulted with a spade and a spear and not with a lathi. Be that as it may, the deceased did not narrat e in detail to PW-1 as to who assaulted with what weapon. However, PW-1 was repo rted by the deceased that an altercation had ensued regarding release of rain wa ter from his paddy field. In the cross-examination, PW-1 was given a suggestion about the counter case filed by the accused Manindra. From the suggestions given in the cross-examination to PW-1 it appears that the fact of altercation and ma rpit in between the deceased and Manindra was not disputed but the presence of o ther two accused persons was disputed. PW-2 had watched the altercation from a distance of about 250 cu 15. bits while he was ploughing his paddy field. PW-2 has also confirmed about the p resence of the accused Manindra in his paddy field. Since PW-2 did not assert th at he had witnessed the assault by the accused persons he was declared hostile. In the cross-examination, PW-1 has admitted about the altercation between the ac cused Manindra and the deceased Anil relating to release of water from the paddy field. However, PW-2 denied the prosecution suggestion that he had also seen th e other accused persons in assaulting the deceased. In this way, the testimony o f PW-2 is corroborative so far as the complicity of accused Manindra is concerne d but there is doubt about involvement of other persons. 16. The testimony of PWs-3 and 4 are basically hearsay and they have not spoken anything about the complicity of the respondents. However, PW-3 has also admitted the fact of altercation in between the deceased and the accused Ma nindra since both the persons had paddy fields contiguous to each other. 17. PW-5 is the son of the deceased. As per the Public Prosecutor, h e is the prime witness to the incident. PW-5 has deposed that at the relevant ti me he was planting paddy at a distance of about 12 feet from his father. PW-5 ha s further asserted that noticing Manindra advancing towards his father with ill intention to assault him with a pointed bamboo he went near his father and by th at time the accused Rana had already assaulted his father with a pointed bamboo over his head and thereafter the accused Manindra also assaulted his father over his head. If the testimony of PW-5 is to be accepted then there should have bee n two injuries on the head. However, PW-6 as well as the autopsy doctor found on ly one injury on the forehead. On this ground alone, it would not be safe to tre at PW-5 as an eye-witness to the incident. Even otherwise, his presence at the p lace of occurrence does not find place in the testimonies of PWs-1 and 2 nor in the FIR and also not in the initial statement given by the deceased before the I nvestigating Officer under Section 161 CrPC. PW-5 also cannot be accepted as an eye-witness to the incident since his statement was not recorded by the Investig ating Officer till the filing of the second after about 7 (seven) weeks nor he w as cited as a witness in the first charge sheet. It is difficult to believe that being an eye-witness to the incident the son of the deceased would not have app eared before the Investigating Officer to give his statement or vice-versa. Henc e, we hold that the trial Court has rightly rejected the testimony of PW-5 as an eye-witness. 18. The next incriminating evidence against the accused Manindra is in the nature of dying declaration made by the deceased before the Investigating Officer. Ext-9 is the said statement. In this statement also it was stated that altercation had initially taken place between the accused Manindra with his son when the latter had cut the mud-boundary (ail) of the paddy field for releasing the rain water and then the accused Manindra had assaulted his son Karuna. The deceased also stated before the Investigating Officer that when he tried to resi st the accused he was also assaulted by the blunt side of a spade. After giving this statement, the deceased also made a self contradicting statement that the a ccused Manindra and Rana again assaulted him with lathis. PW-3 was noticing the altercation from a distance of only about 20 nals (aprox. 150 feet) and he was able to identify the deceased and the accused Manindra quite clearly. However, P W-3 is totally silent about the presence of other two accused persons. This is a nother ground to give benefit of doubt to the respondent Nos. 2 and 3. 19. Now, the legal issue involved in this appeal is whether the stat ement given by the deceased before the Investigating Officer under Section 161 C rPC can be treated as a dying declaration. The same issue was thoroughly examine d by the Hon’ble Supreme Court in the case of Bhagwan (supra). In this cited cas e also, the victim’s statement was recorded by the Investigating Officer and the victim died on the very next day without giving any time for obtaining his form al dying declaration in presence of any doctor and witnesses. Despite that, the Apex Court concurred with the view taken by the trial Court that the statement m ade by the deceased before the Investigating Officer can be treated as a dying d eclaration under Section 32 (1) of the Evidence Act. Their Lordships have held t hat the law empowers the prosecution to rely on such statement by treating it as a dying declaration. Relevant observations of the Hon’ble Supreme Court are rep roduced below for ready reference: (cid:28)20. Going by Section 32(1) Evidence Act it is quite clear that such statement would be relevant even if the person who made the statement was or was not at th e time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall under Section 32 (1) of t he Indian Evidence Act, time and again this Court has cautioned as to the extrem e care and caution to be taken while relying upon such evidence recorded as a dy ing declaration. 21. As far as the implication of 162 (2) of Cr.P.C. is concerned, as a propositi on of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the ch aracter of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a st atement though was once recorded under Section 161 Cr.P.C. The above statement o f law would result in a position that a purported recorded statement under Secti on 161 of a victim having regard to the subsequent event of the death of the per son making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Secti on 32 (1) of Evidence Act and thereby commend all the credence that would be app licable to a dying declaration recorded and claimed as such. (cid:29) 20. Earlier to that, in the case of Gentela V.Rao-vs-State o f AP: (1996) 6 SCC 241 the Hon’ble Supreme Court also held that a statement give n to a Magistrate by a victim under expectation of death ceases to have evidenti ary value U/s 32 of the Evidence Act if the maker thereof survives, such a state ment can still be used for corroboration in a court U/s 157 of the Evidence Act. An identical situation also arose in the case of Gubbala Venuegopalaswamy-vs- S tate of AP: (2004)10 SCC 120. In this case also a witness did not survive after giving his statement before an Executive Magistrate. Even then his statement was held to have evidentiary value U/s 157 of the Evidence Act for the purpose of c orroboration. However, in the case before us though the victim’s statement was i nitially recorded U/s 161 CrPC but the same has taken the shape of a dying state ment and it can be read in evidence both U/s 32(1) and Section 157 of the Eviden ce Act. 21. The above apart, in a catena of decisions it has also been held that there is no statutory prescription about the manner and method in which a d ying declaration should be recorded. Without multiplying authorities in this reg ard, we are inclined to extract the guidelines laid down by the Apex Court in th e case of Laxman -Vs- State of Maharashtra; (2002) 6 SCC 710, which are as under : (cid:28) & & & &A dying declaration can be oral or in writing and any adequate method of co mmunication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Mag istrate or a doctor or a police officer. When it is recorded, no oath is necessa ry nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the st atement of a man about to die. There is no requirement of law that a dying decla ration must necessarily be made to a Magistrate and when such statement is recor ded by a Magistrate there is no specified statutory form for such recording. Con sequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case & & & & & & . (cid:29). 22.
Decision
In addition to the dying declaration of the deceased in the form of his statement under Section 161 CrPC and also the implication of the accused Manindra coming forth from the testimony of PW-1 we also find corroboration fro m other angles as well. In his statement under Section 313 CrPC, given by the ac cused Manindra, the fact of altercation/quarrel was not disputed. The said accus ed also declared about the counter case, which we have already noted earlier. In view of the counter case, there can be no argument that the deceased must have been assaulted by any person other than the accused Manindra. Besides this, PW-1 was given a suggestion in the cross-examination that the deceased had destroyed the paddy field of the accused and for that purpose a counter case was lodged. In this way, the accused did not sustain any grievous injury to take a view that he had assaulted the deceased in exercise of his right to private defence. Howe ver, the fact remains that the offence was committed in the midst of quarrel and under heat of passion and the accused also did not take any undue advantage of the situation by way of giving repeated assaults on the head. As per the evidenc e of the witnesses and the autopsy findings the deceased was given a single blow upon his head and that too from the blunt side of a spade. Hence, we hold that Exception 4 to Section 300 IPC is attracted and the offence of culpable homicide did not amount to murder. 23. In the result, the appeal stands partly allowed. We convict the respondent No. 1, Manindra Suklabaidya under Section 304 Part-II of the Indian P enal Code, 1860. Having regard to the fact that the incident took place more tha n 10 (ten) years ago and also the fact that the aforesaid accused/respondent is more than 70-years-old by now we award the accused token sentence of 1 (one) yea r’s RI. It is made clear that the period of detention already undergone by the s aid accused during investigation and trial shall be set-off under Section 428 of the Code of Criminal Procedure, 1973. However, we do not propose to impose fine upon the said accused. At the same time, the acquittal of the respondent Nos. 2 and 3 is hereby maintained, by way of giving benefit of doubt to them. 24. Section 357-A of the Code of Criminal Procedure, 1973 imposes an obligation upon the State Government to pay compensation to the victim’s family . Accordingly, as an interim compensation we 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 o 25. f Rs. 1,00,000/- (Rupees One Lac) only to the family members of the victim. The Government shall deposit the compensation amount in the Office of the learned Se ssions Judge, Cachar, Silchar, within a period of 2 (two) months from the date o f receipt of a copy of this order. On receipt of the money the same shall be dis bursed to the family members of the victim on proper identification and after ob taining proper receipt.