Gauhati High Court
Biren Chautal vs The State Of Assam on 17 July, 2012
Author: Amitava Roy
Bench: Amitava Roy, Anima Hazarika
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA: MANIPUR: TRIPURA:
MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal N0. 210 OF 2006
SHRI BIREN CHAUTAL
............Appellant
-Versus-
THE STATE OF ASSAM
........... Respondent
BEFORE THE HON'BLE MR. JUSTICE AMITAVA ROY THE HON'BLE MRS. JUSTICE ANIMA HAZARIKA For the Appellant : Mr. K Bhattacharjee, Advocate.
Mr. JC Barman, Advocate.
For the respondents : Mr. D Das, Addl. Public Prosecutor, Assam.
Date of Hearing : 17.07.2012.
Date of Judgment : 17.07.2012.
JUDGMENT AND ORDER(ORAL)
Amitava Roy, J
The accused-appellant, being convicted under section 302 of the Indian Penal Code (hereafter for short referred to as the IPC) and sentenced to suffer imprisonment for life and to pay a fine of Rs. 3000/-, in default, to undergo RI for six months recorded by the judgment and order dated 21.07.2006, passed by the learned Addl. Sessions Judge No. 2 (FTC), Tinsukia in Sessions Case No. 4(T)/2005, is in appeal for redress.
02. We have heard Mr. K Bhattacharee, Advocate assisted by Mr. JC Barman, Advocate for the accused-appellant and Mr. D Das, learned Addl. Public Prosecutor, Assam.
03. On a verbal information, being received from one Narayan Aich (PW 11) that a dead body was lying on his land situated near Bhola Medical, the Officer-in-Charge, Dibrugarh Police Station made a GD Entry No. 666, dated 15.08.2004 and visited the spot for investigation. It was, thereafter, that there one Prabir Deb, the brother of the deceased, Ratan Deb, lodged the FIR to the same effect accusing the accused-appellant to be the murderer. On the FIR, Tinsukia P.S. Case No. 277/2004 was registered and on the completion of the investigation charge sheet was laid under section 302 IPC against him (accused-appellant). He having denied the charge at the trial, the prosecution examined 12 witnesses, including the doctor, who had conducted the post mortem examination as well as the Investigating Officer.
The statement of the accused-appellant was, thereafter, recorded under section 313 Cr.P.C, in course whereof, as well, he denied the charge. Significantly, in course of the investigation, as claimed by the prosecution, a confessional statement of the accused-appellant was recorded under section 164 Cr.P.C. He, however, declined to adduce evidence in defence. The judgment and order of conviction and sentence followed.
04. Mr. Bhattacharjee has insistently urged that in absence of any eye-witness to the incident, the learned trial Court erred in law in relying on the confessional statement of the accused-appellant which had been duly retracted by him at the time of his examination under section 313 Cr.P.C. CRL. A. NO. 210/2006 Page 2 of 10 The learned counsel has argued that even assuming that the confessional statement of the accused-appellant is accepted in its entirety, having regard to the facts and circumstances in which the incident had occurred, it is obvious that the accused-appellant had acted in self defence and to guard the property of his employer and that by no means, his act of assault would constitute an offence under section 302 IPC. As the prosecution has failed to prove any murderous intention on his part to kill the deceased, at best, his offence can be one under section 304 Part-II of the IPC, he urged.
05. Mr. Das, in reply, has argued that having regard to the confessional statement, the validity as well as the probative worth whereof has not been questioned by the accused-appellant as well as the number of injuries sustained by the deceased, the plea of want of intention is misconceived and, thus, no interference with the impugned judgment and order is warranted.
06. To better comprehend the rival submissions, it would be appropriate to effect a brief survey of the evidence on record.
PW 1, Prabir Dey, the informant, is the brother of the deceased. According to him, the occurrence took place at about 11.00 p.m. on 14.08.2004 and he was informed about the same on the next date at about 05.00 a.m. by one Gautam Das, PW 6. The witness stated that he having rushed to the place of occurrence, he found his brother lying dead on the ground with 3/4 injuries on the head and also a cut injury on his left leg. He mentioned about the presence of the policemen thereat. He deposed, as CRL. A. NO. 210/2006 Page 3 of 10 well that the accused-appellant on being asked, did produce an iron rod from his house with which, he confessed, to have assaulted the deceased. The witness proved the seizure vide Ext. 1 and also the FIR lodged by him vide Ext. 2. He proved, as well the inquest report vide Ext. 3.
07. PW 2, Smti. Bibha Dey @ Deb is the sister of the deceased. She testified that about 09.30. p.m. in the night of the occurrence her brother, the deceased, had proceeded to the house of the accused-appellant and did not return thereafter. According to her, on the next date, one Biren Das informed the family of the incident, on receipt whereof, she went to the place of occurrence and found her brother, Ratan Deb, lying dead with injuries on head and legs. She mentioned about the presence of police at the spot. According to her, the accused-appellant confessed to have assaulted the deceased and had killed him. She supported the seizure of the iron rod by the police on being produced by the accused-appellant and identified the weapon as Mat. Ext. 1.
08. The evidence of PW, Santi Ranjan Dutta, PW 4, Rubul Bora, PW 5, Supriya Dey and PW 9, Palash Ranjan Gharphalia is not of much relevance to be dilated upon.
09. PW 6, Gautam Das stated that the accused-appellant at the relevant time was serving as the Chowkidar of a plot of land situated near Bhola Medical. On the date of the occurrence as policemen and others assembled on the land, he also visited the place and, amongst others, saw CRL. A. NO. 210/2006 Page 4 of 10 the police seizing an iron rod produced by the accused-appellant vide Ext. 1. He identified the weapon as Mat. Ext. 1 in court.
10. PW 7, Kamal Nandi, apart from stating that the accused- appellant on the date of the incident was a Chowkidar of the land belonging to one Narayan Aich, disclosed that on being questioned, he (accused- appellant) had confessed that in the night of the incident on the sight of thieves entering the land he shouted "thief, thief", on which the intruders pelted stones on him, whereupon, in self-defence, he hit one of the person with a rod.
11. PW 8, Narayan Kr. Aich supported fact that at the relevant time, the accused-appellant was a Chowkidar engaged by him to guard his land situated near Bhola Medical. He deposed that on visiting the site after receiving the information, he found the accused-appellant being apprehended by police. He has also seen the dead body lying on the ground with injuries.
12. PW 10, Lohit Kr. Saikia, who at the relevant point of time was a Judicial Magistrate 2nd Class at Tinsukia, deposed to have recorded the confessional statement of the accused-appellant under section 164 Cr.P.C. In his evidence, he detailed the steps and the precautions taken by him as prescribed in law and testified that the confessional statement so recorded was voluntary nature and admissible in law.
CRL. A. NO. 210/2006 Page 5 of 10
13. PW 11, Sayed Nekibur Rahman, who at the relevant time was PI, Dibrugarh stated to have lodged a verbal information about the incident from Narayan Aich following which he made a GD Entry and started the investigation. He mentioned about the seizure of the rod vide Ext. 1 and identified the same as Mat. Ext. 1. After detailing the other initiatives taken by him in course of the investigation, he stated to have handed over the case diary to his successor, who, eventually, submitted the charge sheet vide Ext. 9. He proved the confessional statement of the accused-appellant vide Ext. 10.
14. PW 12, Dr. Hemanta Kr. Mahanta, who performed the post mortem examination on the dead body stated to have found the following injuries: -
"Wounds-
1. Lacerated wound size 1.5 cm x 1 cm on right forehead just above right eye brow and 4 cm from left mid line.
2. Lacerated would size 1.5 cm x 1 cm over left eye brow 5 cm from mid line injury No. 2 was bone depth.
3. Lacerated wound size 5 cm x 1 cm x bone depth one left frontal area 2 cm from mid line and 8 cm above the eye brow.
4. Lacerated wound size 5 cm x 1 cm x scalp depth on left temporal area 2 cm behind the left ear.
5. Lacerated wound size 1.5 cm x 0.5 cm on inner side of left forearm 10 cms above the wrist.
6. Lacerated wound size 1 cm x 0.5 cm x bone depth on back of left forearm in the middle. The right ulna (forearm bone fractured).CRL. A. NO. 210/2006 Page 6 of 10
7. Abrasion size 10 cm x 2 cm over outer part of left arm over middle part.
8. Contusion size 15 cm x 8 cm on front of left side of chest upper part."
He mentioned that the skull disclosed fissured fracture of the left frontal and temporal region and under injury Nos. 3 and 4. He opined that death had occurred due to coma resulting from the head injury, which was ante mortem in nature and caused by blunt force and were homicidal. He clarified that injury Nos. 3 & 4 were fatal. According to him, this could be caused by a weapon like the iron rod, Mat. Ext. 1.
15. On a cumulative consideration of the evidence on record, oral and documentary, the absence of eye-witnesses notwithstanding, there is no shade of doubt that the accused-appellant was the assailant of the deceased, who succumbed to the injuries sustained. The materials on record demonstrate that at the relevant time, the accused-appellant was a Chowkidar of the land of one Narayan Aich and that, amongst others, bricks had been staked thereon. The testimony of PW 7, Kamal Nandi, in particular and the confessional statement of the accused-appellant evince that in the night of the occurrence the deceased along with others had trespassed into the land of Narayan Aich then under the surveillance of the accused- appellant and when he raised alarm by sighting them, they pelted stones on him for which in exercise of his right of private defence of his body and the property of which he was put in-charge, hit the assailants with the rod that he was carrying and in the process the deceased suffered injuries on his CRL. A. NO. 210/2006 Page 7 of 10 head to which he, eventually, succumbed. No other version to dislodge this sequence of events is available on record. Though, the plea of right to private defence has not been taken by the accused-appellant at the trial, considering the present state of law, the same, if available on the basis of the evidence adduced, can be utilized by him in the appeal. Noticeably, the evidence on record does not suggest that the accused-appellant had either identified the deceased at the time of assault or had him in mind to cause the same so as to eliminate him. The assaults unleashed by him on the intruders, as we can visualize, was prompted by his sense of duty and feeling of insecurity, he being outnumbered by the trespassers, who attacked him by pelting stones. It is not unlikely that being petrified with the alarm of disastrous consequences, he might have over reacted and caused assaults on the deceased resulting in multiple injuries on his head for which he, eventually, expired.
16. In the above view of the matter and on an overall visualization of the emerging scenario, we are constrained to hold that the accused- appellant cannot be attributed with the murderous intention of doing away the deceased by committing repeated assaults on him with the iron rod that he was carrying for his self-defence to effectively discharge his duty of guarding the property of his employer. Nevertheless, that the deceased had died under the injuries sustained by the assaults made by the accused- appellant is not in doubt. However, with regard to the facts and circumstances attendant on the incident, we are inclined to grant him the CRL. A. NO. 210/2006 Page 8 of 10 benefit of want of intention as contemplated in section 304 Part-I IPC. We are, thus of the view that it would meet the ends of justice, if the offence is scaled down to one under section 304 Part-II of the IPC.
17. In course of the arguments Mr. Bhattacharjee has fervently appealed to reduce the sentence to the minimum and if possible to limit it to the period undergone having regard to the singular background in which the incident had occurred and also his family comprising of his wife and two minor children.
18. We have heard Mr. Das, learned Addl. Public Prosecutor, Assam on this aspect. The fact that the incident had occurred due to the trespass of the deceased along with his associates on the land in the dead night cannot be overlooked. According to the accused-appellant, he intervened as they were in the process of stealing the bricks of his owners stacked on the land.
19. We are told that not only, the accused-appellant is in custody since after his conviction by the impugned judgment and order dated 21.07.2006, he had suffered imprisonment during the investigation for about 5 months as well. As on date, therefore, the accused-appellant has done over 6 years of incarceration. In that view of the matter and on a conjoint consideration of all relevant aspects, we are of the opinion that the sentence for the offence of section 304 Part-II IPC recorded by us ought to be limited to the period already undergone by the accused-appellant. CRL. A. NO. 210/2006 Page 9 of 10 Ordered accordingly. The appeal is allowed to the extent indicated hereinabove. In view of the conviction and sentence awarded in the appeal, the accused-appellant is hereby ordered to set at liberty forthwith, if not required to be detained in connection with any other case.
JUDGE JUDGE
beep/-
CRL. A. NO. 210/2006 Page 10 of 10