High Court
Case Details
Crl.A. 92/2011 PRESENT HON’BLR MR JUSTICE B. D. AGARWAL HON’BLE MR JUSTICE M. R. PATHAK Agarwal,J
Legal Reasoning
Appellants are the brother-in-law to one another. They have been convict ed under Sections 302/201 of the IPC by the judgment dated 23rd June, 2010 passe d by learned Additional Sessions Judge, Sankardevnagar at Hojai in Sessions case no 66/2008. After their conviction for the aforesaid offences, the appellants h ave been sentenced to rigorous imprisonment for life with a fine of Rs 1000/- an d in default to undergo further rigorous imprisonment for six months under Secti on 302 of the IPC. Appellants have also concomitantly been sentenced to undergo rigorous imprisonment for three years with a fine of Rs 500/- and in default to undergo further rigorous imprisonment for three months. Aggrieved by the convict ion and sentence, this appeal has been filed for setting aside and quashing the impugned judgment. 2. rned Additional Public Prosecutor. Also went through the evidences on record.
Legal Reasoning
Heard Mr PD Nair, learned counsel for the appellants and Ms S Jahan, lea 3. The prosecution case in brief is that the deceased was an 18/20-year-old boy. The incident took place in the month of July, 2006. At the relevant time t he deceased was engaged by the appellants in tilling their paddy fields. It may be mentioned here that the appellants were staying under the same roof. It is th e further case of the prosecution that the accused Nanda suspected his two-year- old daughter of being sexually molested by Netai. Spurred by this suspicion, Net ai was beaten up on a particular day and since then he went missing and after ar ound a week his dead body was found in a bamboo-orchard. 4. After recovery of the dead body, the FIR was lodged by the uncle of the deceased on 27.7.2006. After the investigation, the charge-sheet was filed again st the appellants and they were tried for the offence of murder and also for des troying the evidences of offence. 5. The defence case was of total denial: one accused ~ Bijoy Rajbhor ~ exam ined himself as DW1 denying the prosecution story that Netai was working in thei r field and also the allegation of physical assaults, etc. 6. On the other hand the prosecution examined sixteen witnesses, altogether . Majority of the witnesses are family members of the deceased. PW1, PW2, PW11, PW3 and PW4 are uncles, brother and sisters of the deceased; PW12, PW13, PW14, P W15 and PW16 are official witnesses; and the remaining six are co-villagers, wh ose testimonies are confined to missing of the child for about a week, recovery of the dead body from a bamboo-orchard and holding of inquest of the dead body, etc. 7. PW1, PW2, PW11, PW3, PW4 stated in chorus that the deceased was working at the house of the accused. They have deposed that Netai was towed-forward by b oth the accused slapping and dragging on him down the road to their home with a view to further beating and since then he was missing. PW2 has categorically dep osed that as usual on the relevant day also the deceased had gone to the house o f the appellants to report to his duty. On that day at around 4 PM when he heard about physical assault on the deceased he came out to find Netai being beaten u p and on being protested he was told by accused Nanda that his one-and-half-year -old daughter was raped by Netai and saying this both the accused went on toward s their house by captivating Netai. The witness further deposed that thereafter both the accused took the deceased to their house. 8. PW3 also deposed that one day she saw accused Nanda forcefully taking aw ay her brother Netai beating and dragging down the road through the house of her sister Nepuli Barman and her brother went missing since then. PW4 is another sister of the deceased. She has also stated that on one d 9. ay both the accused took away her brother Netai after beating him up nearby her house. She has clarified that her residence is very near to the house of the dec eased. She has stated that from that day her brother went missing and after abou t seven days the dead body of her brother was recovered in a decomposed state fr om jungle. In the cross-examination, PW4 has clarified that accused Nanda assaul ted her brother with hands in her forecourt and on being protested, she was shoo ed away. 10. PW5 is another important witness. She is a co-villager, not related to v ictim’s family. She has deposed that one day she saw both the accused slapping o n the deceased in their house. Not only this, on the same night at around 2 AM s he heard screaming of a boy waving from the direction of the house of the accuse d. 11. Sri Nair, learned counsel for the appellants, submitted that PW5 has not categorically deposed that the crying voice actually came from the house of the accused and it was also not possible for PW5 to hear the voice of the deceased clearly. In the cross-examination, PW5 has clarified that the house of the accus ed was situated only at a distance of 50-60 cubits. In our considered opinion, t here should be no difficulty to hear the crying of a young boy from such a stone -throwing distance and that too at late night. 12. In view of the aforesaid evidences, we find no difficulty to hold that t he entire chain of circumstances is complete to hold that the offence of culpabl e homicide was committed by the appellants, and none else. We make it clear that in the entire evidence the theory of involvement of any third person is not app earing. Now the question is, whether it is a case of murder or of ’culpable homi 13. cide not amounting to murder’? In this regard we are to refer to the testimony o f the autopsy doctor. The medical officer has deposed that during the autopsy he found fracture of ribs on the right chest of the deceased. In this way, the doc tor did not notice any fatal injury on any vital organ like head nor did he noti ce any evidence of assault on the deceased with sharp weapon. We have already me ntioned earlier that all the witnesses have spoken about pummeling etcetera on N etai. In view of the aforesaid facts and circumstances the conviction of the 14. appellants is converted from one under Section 302 of the IPC to one under Secti on 304 Part II of the IPC. However the conviction under Section 201 of the IPC i s maintained, since after committing the culpable homicide the dead body was thr own over into a bamboo-orchard to hide the offence. In view of the alteration of the conviction from Section 302 of the IPC to section 304 Part II of the IPC th e sentence is also reduced to 5(five) years rigorous imprisonment. However, the amount of fine of Rs 1000 for the offence of culpable homicide is maintained, bu t the default sentence is reduced to one month rigorous imprisonment. Since both the sentences are directed to run concurrently, we do not propose any alteratio n in the sentence awarded under Section 201 of the IPC. With the aforesaid modification in the conviction and sentence, the appe 15. al is dismissed. Learned Additional Sessions Judge, Sankardevnagar at Hojai is d irected to issue modified custody warrant on receipt of a copy of this judgment. Section 357-A of the CrPC, 1973, provides grant of maintenance to the vi 16. ctim or his family members. Accordingly, it is ordered that the State of Assam w ould pay a compensation of Rs 1(one) lakh to the victim’s family. The Govt. is d irected to deposit the compensation amount with the office of Sessions Judge, Na gaon within a period of two months from today. On deposit of the compensation am ount, the same would be disbursed to the family members of the deceased after ob taining proper receipts and on proper identification.