High Court
Case Details
Crl.A. 128/2010 BEFORE HON’BLE MR JUSTICE K. SHREEDHAR RAO THE HON’BLE MR JUSTICE M. R.. PATHAK Sreedhar Rao,J. The material-facts of the prosecution case disclose that one Birbal Rajb ongshi is the deceased. He is the maternal-uncle of the accused/ appellant. The deceased was addicted to gambling. He was losing money heavily in the gambling. The deceased was also used to threaten and scare the villagers and thereby he in curred the wrath and displeasure of the people in the society. The deceased was running a shop. On 30.9.2007 at around 10.30 PM when the deceased was in the ho use the appellant/accused came in along with 2-3 other accused. The deceased was insisting the accused to pay him money. The accused had refused to pay money to the deceased. When the accused came and met the deceased at his shop, there app eares to be a quarrel and that the accused was said to have caused injuries to t he deceased with a machete and as a result the deceased succumbed to the injurie s. 2. A complaint was given by the younger brother of the deceased vide exihib it-1. The police conducted inquest and subjected the dead body to post-mortem. T he report discloses that the death is due to shock and hamerrohage as a result o f injuries sustained on the left side of the neck.
Legal Reasoning
The accused/appellant, in course of the investigation, was produced befo 3. re a Magistrate and he had made a part of the confessional statement under Secti on 164 of the CrPC. The prosecution, in the final report, has mentioned the PWs 2 and 3 as eye witness to the incident. The accused-persons have been charged fo r committing offences under Sections 448/302/34 of the IPC. The accused-persons were sent up for trial. The trial court has acquitted the accused 2, and convict ed the accused/appellant. Hence this appeal by the convicted-accused. The PW1 is the person who lodged the complaint, which is registered as F 3. IR. In the said complaint it is mentioned that he has seen the accused/appellant causing injuries to the deceased with a machete along the 2-3 accused-persons. In the evidence, the PW1 stated that he has not witnessed the entire incident bu t the concluding part of the incident and that on hearing a noise he went to the spot and saw the deceased lying dead at his shop and the accused-persons runnin g away. 4. The PWs 2 and 3 who are projected as eye witness have denied that they w itnessed the entire incident but said that they did witness a part of the incide nt to the effect that when they visited the scene the accused-persons were going away along with the weapon and the deceased lying dead. 5. The accused in the confessional statement before a Magistrate has stated that the deceased is a gambler and he incurred the displeasure of the people an d that the deceased was insisting the accused 1 to pay him money. And on 30.9.20 09 when the accused met the deceased at his shop the deceased asked him for mone y and when he refused to pay, the deceased got wild and attacked him with a mach ete but he fell down and when the deceased once again tried to inflict him injur y with the machete the deceased fell down and also the machete and the accused p icked up the machete and caused injuries to the deceased. 6. In the confessional statement the accused/appellant says that he himself and others made preparations to take the injured-deceased to a doctor and in th e meanwhile he died. The post-mortem report discloses that the death is homicida l. The trial court basing on the evidence of the PWs 1 and 3 has convicted the a ppellant/accused, and acquitted the accused 2. 7.
Legal Reasoning
Sri GC Phukan, learned counsel appearing for the appellant has submitted the following circumstances to assail the order of conviction: The PWs 1 and 3 are hostile witnesses. Their evidence before Court that i) they are witness to a part of the incident and they did not witness the entire i ncident is contrary to the contents of the FIR, therefore their evidence with re gard to a part of the incident is to be rejected as incredible. The 164 CrPC-statement recorded by a Magistrate has been retracted by th ii) e accused/appellant: in fact the 164 CrPC-statement, if read carefully, it would reveal that the appellant had to inflict injury to the deceased as a self-defen ce, otherwise the accused would have been killed. Therefore, the said statement helps the accused/appellant, and against the prosecution to prove the guilt. ~ In the alternative the counsel has submitted that in a state of quarrel and provocative circumstance, the accused had to assault the deceased, therefore it will not be an offence under Section 302 of the IPC, but it would be an offe nce under Section 304 part of the IPC. 8. Upon a thorough consideration of the facts and the evidence we find that there appears to be a prevarication on the part of the PWs 1 to 3 with respect to the version of the incident as stated in the FIR and in their evidence before trial court. In the FIR, the PWs 1 and 3 are said to be witness to the entire i ncident, but in the evidence they are treated as hostile. The public prosecutor before the trial court while putting leading questions to the PWs 1 and 3 they h ave admitted that they had not witnessed the entire incident but had witnessed t he concluding part of the incident. When the PWs 1 and 3 visited the scene the a ccused-persons were going away and wielding a machete in the hand and found the deceased lying dead. This evidence appears to be a credible version and serves a s a res ges-tea circumstance for the prosecution, and would convincingly suggest the guilt of the accused/appellant. The judicial confession of the accused reco rded by the Magistrate discloses the motive for the commission of offence and al so that a quarrel preceded before the accused inflicted injuries to the deceased . In the confessional statement the accused states that the deceased attacked hi m with a machete and he fell down and also said that when he fell down for the s econd time the deceased wanted to inflict with the machete but the deceased fel l down and also the machete. Thereafter as a self-defence the accused/appellant picked up the machete and caused injuries to the deceased.
Decision
9. If the version stated in the 164-statement is carefully perused it does not disclose that inflicting of injuries to the deceased by the accused with a m achete was an inevitable act to save himself; rather, it discloses that there wa s a scuffle and in the quarrel the deceased wanted to assault him with a machete , but he fell down and also the machete fell down and the accused picked up the machete and caused injuries to the deceased as a self-defence. The accused cause d the injury as a self-defence cannot be accepted, but it is true that in a stat e of quarrel and provocative circumstance the accused had caused the injuries to the deceased. Therefore the offence committed by the accused will not be punish able under Section 302 of the IPC, but will be punishable under Section 304 part one of the IPC. The confessional statement coupled with the evidence of the PWs 1 to 3 in the cross-examination would substantially establish the guilt of the a ccused under Section 304 part one of the IPC. Accordingly the appellant/accused is convicted to offence under Section 304 part one of the IPC. Accordingly the c onviction under section 302 of the IPC is modified to one under Section 304 part one of the IPC. Therefore, the accused/appellant is convicted to rigorous impri sonment for 10(ten) years. The appellant/accused is entitled to the benefit of t he (cid:28)set-off (cid:29) under Section 428 of the CrCPC. The appeal is disposed of.