Gauhati High Court
Sri Joy Kanta Dihingia vs The State Of Assam on 22 March, 2011
Author: Madan B. Lokur
Bench: Madan B. Lokur
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND,MEGHALAYA,
MANIPUR,TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
Crimilal Appeal No. 145(J) of 2005
Sri Joy Kanta Dihingia
........... Appellant.
Vs -
The State of Assam
........... Respondent.
BEFORE HON'BLE THE CHIEF JUSTICE MR. MADAN B. LOKUR HON'BLE MR. JUSTICE C.R. SARMA For the appellant : Mrs. A. Devi, Advocate, Amicus Curie For the respondent : Mr. D. Das, Addl. Public Prosecutor.
Date of hearing : 07.02.2011
Date of delivery of
Judgment and Order : 22.03.2011
JUDGMENT & ORDER (CAV)
(C.R. Sarma J.)
The judgment and order, dated 17.09.2005, passed by the learned Sessions Judge, Sivasagar, in Sessions Case No.189 (S-S)/2003, is in challenge in this appeal. By the impugned judgment and order aforesaid the learned trial Judge, convicted the Crl. A.(J) No.145/2005 Page 1 of 20 appellant under Section 302 of the Indian Penal Code (hereinafter called "IPC") and sentenced him to suffer rigorous imprisonment for life and pay fine of Rs.5,000/-, in default of payment of fine, suffer another period of rigorous imprisonment for 6(six) months. Being aggrieved by the said conviction and sentence, the convict, as appellant, has preferred this appeal from jail.
2. The prosecution case, as unfolded at the trial, in brief, may be stated as follows :-
The present case involves the killing of Sri Ghana Kanta Dihingia (hereinafter referred to as „the deceased‟) by his son i.e. the appellant-convict. On 24.08.2003, at about 8 a.m., when the appellant was working in his paddy field by means of a hoe, the deceased appeared there in the field and requested him not to plough about one katha of land, but this request was turned down by the appellant. Consequently, an altercation, between the deceased and the appellant, took place and the deceased had inflicted a slap on the appellant. On being so slapped, the appellant also, who was working with a hoe, assaulted the deceased with the said hoe by inflicting one blow on the back of the head and another on the chest, just below the arm of the deceased, as a result of which, the deceased had fallen down. The deceased was carried Crl. A.(J) No.145/2005 Page 2 of 20 home, in injured condition, by PW.1 i.e. the younger brother of the appellant and PW.2, who were also working near the place of occurrence and after about one and a half hour, the deceased succumbed to the injuries sustained by him. The accused was handed over to the police by PW.1 and information about the occurrence was lodged, on the same day. Police, after receipt of the FIR, registered a case, being Demow P.S. Case No.47/2003, under Section 302 IPC and launched investigation into the matter.
3. During the investigation, police prepared the inquest report, forwarded the dead body of the deceased for post mortem examination, arrested the accused, seized the incriminating weapon (hoe) and recorded the statement of the witnesses. At the close of the investigation, police submitted charge sheet against the accused for the offence under Section 302 IPC.
4. The offence, under Section 302 IPC, being exclusively triable by the Court of Sessions, the learned Chief Judicial Magistrate, Sivasagar, committed the case to the Court of Sessions for trial and the learned Sessions Judge, Sivasagar, framed the charge under Section 302 IPC against the accused, to which, the latter pleaded not guilty and claimed to be tried. Crl. A.(J) No.145/2005 Page 3 of 20
5. In order to prove its case, the prosecution examined as many as 9(nine) witnesses, including the Medical Officer (PW.5), who conducted the autopsy of the dead body and the Investigating Police Officer (PW.9).
6. At the conclusion of the evidence for the prosecution, the accused person was examined, by the learned trial Judge, under Section 313 of the Code of Criminal Procedure (for short "Cr.P.C"). The accused denied the allegations, brought against him and declined to adduce defence evidence. His plea was a total denial one.
7. Considering the evidence on record, the learned trial Judge found the appellant guilty of the offence under Section 302 IPC and accordingly convicted and sentenced the accused, as indicated above.
Being aggrieved, the convict, who has been suffering the sentence, as appellant, has preferred this appeal, from jail.
8. We have heard Mrs. A. Devi, learned Advocate, appearing on behalf of the appellant as an amicus curie and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State of Assam.
Crl. A.(J) No.145/2005 Page 4 of 20
9. The learned amicus curie, has submitted that there are sufficient discrepancies in the evidence of the prosecution witnesses, more particularly in the evidence of the eye-witnesses and the medical evidence and that the prosecution failed to prove the case, beyond all reasonable doubt. It is also submitted that the learned trial Judge committed error by convicting the appellant without sufficient evidence. The learned amicus curie further submitted that, considering the circumstances, in which the alleged offence was committed, the same did not amount to murder, rather it was a culpable homicide not amounting to murder and as such the appellant is entitled to the benefit under Section 304 IPC.
10. Refuting the said argument, the learned Addl. Public Prosecutor, supporting the impugned conviction and sentence, has submitted that, there is sufficient evidence of intentionally causing the injuries with a sharp and heavy object on vital parts of the body and as such the learned trial Judge committed no error by recording the conviction and the sentence under Section 302 IPC.
11. In order to appreciate the arguments, advanced on behalf of the parties, we feel it appropriate to briefly scan the evidence on record.
Crl. A.(J) No.145/2005 Page 5 of 20
12. Sri Chitra Mohan Dehingia i.e. the youngest son of the deceased and younger brother of the appellant, deposing as PW.1, stated that, on the fateful day, while he was ploughing his paddy field, his elder brother i.e. the appellant also was working with a hoe, at a distance of about 40 feet from him and at that time, his father i.e. the deceased, who went there to supervise their works, asked the appellant not to plough about one katha of land, but as the appellant refused to do so, a quarrel had taken place between them and the deceased, by giving a slap, asked the appellant to leave the place. He further stated that, the appellant also with the hoe in his hand, inflicted two blows on the person of the deceased, i.e. one blow on the back of the head and the other blow on the chest, just below the arm. According to PW.1, the injured was taken home, wherein he succumbed to the injuries.
13. PW.2, Sri Tarun Dihingia, who was also working in his filed, near the place of occurrence, supporting the evidence of PW.1, stated that, he saw the appellant inflicting blows on the person of the deceased with a spade and that the deceased died within an hour of receiving the said blows. Both PW.1 and PW.2, who were the eye witnesses to the occurrence, were cross-examined, on behalf of the defence, but no material contradiction, to demolish their evidence, could be elicited. There is nothing on record to find that Crl. A.(J) No.145/2005 Page 6 of 20 the said two witnesses had any reason or grudge to falsely implicate the appellant. Rather, they appear to be natural eye witnesses to the occurrence. Hence, we find sufficient corroboration in their evidence to believe that the appellant assaulted the deceased with a hoe, as a result of which the latter died.
14. PW.3, Sri Punya Chetia, who was a neighbourer of the deceased, stated that, he came to know about the occurrence from his wife. This witness was declared hostile and cross-examined by the prosecution. He denied the suggestion that, he stated before the IO that he saw the appellant assaulting his father with a spade.
15. Sri Dimbeswar Bargohain, deposing as PW.4, stated that he was working with PW.3 and he heard about the occurrence. This witness was also declared hostile and he denied the suggestion that, he stated before the IO that he saw the accused assaulting his father with a spade. The evidence given by the said two witnesses is nothing but hear-say evidence.
16. Sri Rahan Dihingia, a cousin of the appellant, deposing as PW.6, stated that, he came to know that the deceased was killed by the accused and that he found the deceased, in injured condition, and that he, along with PW.1 and PW.2, handed over the appellant to the police. He was a witness to the inquest report, prepared by Crl. A.(J) No.145/2005 Page 7 of 20 the police and the seizure of the hoe, by the police. He exhibited the inquest report as Ext.-2 and his signature thereon as Ext.2(2). He also exhibited, the seizure list, by which the hoe was seized, as Ext.- 3 and his signature thereon as Ext.3(2) and the seized hoe as Mat Ext.1.
17. Sri Ananda Chetia, deposing as PW.7, stated that, coming to know about the occurrence, he went to the house of the deceased, wherein he found the latter in injured condition. He was also a witness to the inquest report, which he exhibited as Ext.-2 and his signature thereon as Ext.-2(3).
18. In tune with the evidence of PWs 6 and 7, Sri Jibon Dihingia, PW.8, stated that, hearing some hue and cry, he went out and found bleeding injuries on the person of the deceased, who succumbed to his injuries. He was also a witness to the inquest report and the seizure of the „hoe‟. He exhibited his signature in the inquest report as Ext.-2(4) and in the seizure list as Ext.-3(3). He also exhibited the seized hoe as Mat. Ext. No.1.
19. The Investigating Officer, deposing as PW.9, stated that, he, after receipt of the FIR, prepared the inquest report (Ext.-2), sent the dead body for post mortem examination and at the close of the investigation, submitted charge sheet. He also stated that, he Crl. A.(J) No.145/2005 Page 8 of 20 seized the hoe (Mat. Ext.1) vide Ext.3. Though the IO was cross- examined on behalf of the defence, no contradiction could be brought out to demolish the prosecution evidence, more particularly, the evidence of PW.1, PW.2, PW.6, PW.7 and PW.8.
20. All the said witnesses, who assembled immediately after the occurrence were cross-examined by the defence and no contradictory evidence could be bought out to demolish the prosecution version, more particularly the evidence of PW.1 and PW.2 aforesaid. The exhibited inquest report i.e. Ext.-2 indicates that, police at the time of conducting the inquest, found two injuries on the deceased i.e. one injury on the head above the left ear, exposing the brain matter and the other one on the left side of the back of the deceased. Ext.-3 i.e. the seizure list, reveals that police had seized a hoe, on being shown by PW.1, to be the weapon used by the appellant in assaulting the deceased. PW Nos.6,7 and 8, supported the prosecution version regarding the inquest report and the seizure of the hoe. The evidence of PW.1, that the appellant had assaulted the deceased twice with a hoe, remained unimpeached and PW Nos. 6,7 and 8, supporting the seizure of the hoe, corroborated the evidence of PW.1 on material point. Further PW.2, who was also an eye witness, corroborated the evidence of PW.1 regarding the assault caused by the appellant. Crl. A.(J) No.145/2005 Page 9 of 20
21. The Medical Officer, who performed the autopsy of the dead body of the deceased, deposed as PW.5. He stated that, upon post mortem examination of the said dead body, he found the following injuries :-
"External Wounds:
i) One incised would extending from the back of the left car lobule to the vertex, 1" away from the middle, over the left temporal region of the scalp. The margins of the wound were found sharp. The size of the wound was - 6" x 3" x brain-substance deep.
ii) One incised wound over the left side of the back extending 1" away from the 5th thoracic vertebrata to the back of the 8th rib area, 6" away from the middle.
The size of the wound was 4" x 2" x bone-deep. The margins of the wound were found sharp.
Cranium and Spinal Canal :
Brain membrane was found ruptured under injury No.(i). The brain matter under Injury No.(i) was expelled out through the wound.
Muscles, Bones and Joints :
On dissection, fracture of the left temporal bone was noticed."
The Medical Officer also opined as follows :-
"In my opinion, the injuries were antemortem and homicidal in nature which might have been caused by sharp cutting weapon like dao, spade etc. The death was caused due to shock and coma following the injuries on the vital organ brain, sustained by the deceased.Crl. A.(J) No.145/2005 Page 10 of 20
In my opinion, Injury No.(i) was sufficient to cause the death of the person in the ordinary course of nature.
Ext.4 is my post-mortem examination report and Ext.4(1) is my signature thereon."
22. From the said medical evidence, it is clear that the deceased sustained homicidal ante mortem injuries, caused by sharp cutting weapons like dao, spade etc. and that the death was caused due to the injury No.1 aforesaid. The inquest report i.e. Ext.-2 supports the evidence of PW.5 regarding the location of the injuries. The injury No.1 was found on the head. PW.1, who was the eye witness, stated that the deceased was given a blow on the back of the head. Hence, there is sufficient corroboration in the medical evidence and the ocular evidence. The second injury, according to PW.1, was caused on the chest, just below the arm, whereas according to the Medical Officer, it was found on the left side of the back. According to defence counsel, this discrepancy raises doubt about the prosecution story itself.
In our considered opinion, the said contradiction is not a major one. For, in the given situation, PW.1, who was the youngest son of the deceased, finding his father so assaulted by his elder brother, might have got confused in noticing the exact location of inflicting the second blow. That apart, the portion below the arm, in Crl. A.(J) No.145/2005 Page 11 of 20 ordinary course, can be taken as the side of the back. Hence, the said contradiction is not a major one, sufficient to destroy the prosecution case. Moreover, the Medical Officer, categorically stated that the injury No.(i), with regard to which, there is no contradiction at all, was the fatal injury, causing death of the deceased. Hence there is no doubt that the deceased died due to assault caused by the appellant.
23. The P.W.5 opined that the injuries were caused by a sharp cutting weapon like dao, spade etc. Both PW.1 and PW.2 stated that the injuries were caused by a hoe i.e. spade. They stated that the appellant, at the relevant time was working with a hoe and that he had inflicted blows with the said hoe, in his hand. The IO also seized a hoe (Mat. Ext.1). PWs. 6 and 8, who were witnesses to the seizure of the hoe, supported the prosecution version regarding seizure of the hoe and they exhibited the said hoe at the time of giving evidence. All the said non-official witnesses stated that the deceased died immediately after the said occurrence i.e. after about one and half of an hour. In view of the above evidence, coupled with the medical evidence, it has been clearly established, that the injury sustained by the deceased, more particularly the head injury, at the hands of the appellant, was the cause of his death. Crl. A.(J) No.145/2005 Page 12 of 20
24. Considering the above discussed evidence, we find sufficient corroboration in the evidence of the prosecution witnesses, who supported the prosecution version of the case. In view of the above, we have no hesitation in holding that the prosecution could prove, by adducing cogent and reliable evidence, beyond all reasonable doubt, that the appellant caused the death of the deceased by inflicting blows with a hoe and thus, he was guilty of committing culpable homicide.
25. Now the question is whether the appellant was guilty of committing murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 IPC.
26. Except in the cases, mentioned in Section 300 IPC, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
secondly,- if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of a person to whom the harm is caused; or- thirdly,- if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Crl. A.(J) No.145/2005 Page 13 of 20 fourthly,- if the person committing the act knows that it so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Section 300 IPC provides the following exceptions :-
"Exception 1.- When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any person by mistake or accident.
The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly,-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given by him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any Crl. A.(J) No.145/2005 Page 14 of 20 intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
27. Under the second exception, culpable homicide is not murder if the death is caused by the offender, whilst deprived of self control by grave and sudden provocation. Similarly, under the fourth exception, if the death is caused without any premeditation in the heat of passion upon a sudden quarrel without the offender‟s having taken undue advantage or acted in a cruel or unusual manner, the death does not amount to murder. Culpable homicide and murder involve the killing of a person. What distinguishes these two offences is the presence of a special „mens rea' which consists of four mental Crl. A.(J) No.145/2005 Page 15 of 20 attitudes in the presence of any of which the lesser offence becomes greater. These four mental attitudes are stated in Section 300 IPC, distinguishing murder from culpable homicide.
The punishment for culpable homicide not amounting to murder has been prescribed in Section 304 IPC. Section 304 IPC reads as follows :
"Section 304. Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
Under Section 304 IPC, depending upon different circumstances, two kinds of punishments have been prescribed. Firstly, under Part-I of Section 304 IPC, if the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description for a term which may extend to ten years and fine. Secondly, if the act is done with knowledge Crl. A.(J) No.145/2005 Page 16 of 20 that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Therefore, if the act is done with intention of causing death or such bodily injury as is likely to cause death then the offender is liable under Part-I of Section 304 IPC. Whereas, if the act is done with knowledge that it is likely to cause death but without any intention to cause death, then the offence, committed by the person would fall under Part-II of Section 304 IPC.
In view of the above, in a murder case, the Court is required to make a proper appreciation of the evidence and of law before reaching the conclusion that the case proved is culpable homicide, because all „murder‟ is „culpable homicide‟ but not vice versa. „Culpable homicide‟ sans „special characteristics of murder‟ as defined in Section 300 IPC is culpable homicide not amounting to murder.
28. From the evidence on record, as discussed above, it has been found that at the time of occurrence, the appellant, PW.1 and PW.2, were working in their paddy fields. It has also been found that the appellant was working with a hoe, which was the available Crl. A.(J) No.145/2005 Page 17 of 20 weapon with him and the same was the normal instrument for doing the job, performed by the appellant. The deceased, who appeared in the said place of work, picked up a quarrel with the appellant and he had slapped the accused, which was sufficient to provoke a person doing hard work with a hoe in his paddy field. On being so assaulted and provoked, the appellant, in all probability, lost his cool and self control and consequently retaliated by giving blows with the hoe in his hand. It is not that he had collected the said hoe/spade from other place for the purpose of assaulting the deceased. So, apparently, he used whatever was with him as a weapon of assault. There is nothing on record to show that he had any premeditation to assault or kill his father. If he had any such premeditation to kill the deceased, he could have inflicted several blows finishing the life of the deceased on the spot itself. Of course, he gave only two blows i.e. one at the back of the head and the other on the left side of the back. If he had intention to kill, he could have struck the second blow also on the head itself. The deceased, as revealed from the evidence on record, firstly gave a slap to the appellant and as such he was the aggressor. Had the deceased not picked up the quarrel and provoked the appellant by giving a slap, as indicated by the attending circumstances, the appellant would not have assaulted the deceased. Therefore, as the offence was committed, without any Crl. A.(J) No.145/2005 Page 18 of 20 premeditation, in a sudden fight in the heat of passion upon a sudden quarrel, on being provoked by the deceased and without the offender‟s having taken undue advantage or acted in a cruel or unusual manner, the same is covered by the second and the fourth exceptions aforesaid. In view of the above, we are inclined to hold that the appellant committed the offence of culpable homicide not amounting to murder i.e. the offence under Section 304 IPC.
29. In the present case, the appellant inflicted the fatal blow on the head with a sharp and heavy object, exposing the brain matter. The head being a vital part of the body, it is within the common knowledge of a normal person that, any assault on the head with such a heavy and sharp object was likely to cause death. Hence, the injury caused by the appellant was a bodily injury as was likely to cause death. Therefore, in our considered opinion, the offence committed by the appellant is covered by Section 304 Part-I IPC, the punishment prescribed for which is imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
30. The appellant, who was about 35 years old at the time of his conviction, has already suffered rigorous imprisonment for more than five years. Therefore, considering entire aspect of the matter Crl. A.(J) No.145/2005 Page 19 of 20 and the attending facts and circumstances, in which the offence was committed, we are of the considered opinion that rigorous imprisonment for 10(ten) years will be sufficient to meet the ends of justice. Accordingly, the conviction under Section 302 IPC is modified to one under Section 304 Part-I IPC and the appellant is sentenced to suffer rigorous imprisonment for 10(ten) years, without interfering with the sentence regarding payment of fine and the direction made under Section 428 IPC in the impugned judgment.
31. Thus, the appeal is partly allowed with the modification, as indicated above. Before we part with this judgment, we record with appreciation, the assistance rendered by Mrs. A. Devi, learned Amicus Curie and direct the Assam State Legal Services Authority to pay her Rs.5,000/- (Rupees five thousand)only as her remuneration. Send a copy of this judgment to the Jail authority.
Return the Lower Court Records.
JUDGE CHIEF JUSTICE.
ROY.
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