Meghalaya High Court
Shri Vicky Sun vs . State Of Meghalaya on 9 April, 2021
Equivalent citations: AIRONLINE 2021 MEG 29
Bench: Ranjit More, W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
Crl.A. No. 18 of 2019
Date of Decision: 09.04.2021
Shri Vicky Sun Vs. State of Meghalaya
Coram:
Hon'ble Mr. Justice Ranjit More, Judge
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.D. Upadhaya, Legal Aid Counsel.
For the Respondent(s) : Mr. B. Bhattacharjee, AAG. with
Ms. I. Lyngwa, GA.
Ms. R. Colney, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
Per W. Diengdoh, (J):
1. The Judgment dated 15.07.2019 read with Order of Sentence dated 19.07.2019 passed in Sessions Case No. 25 of 2016 by the learned Additional Sessions Judge, East Khasi Hills District, Shillong wherein the appellant herein was convicted for an offence under Section 302 IPC is under challenged in this instant appeal preferred under Section 374(2) Cr.P.C, 1973.
2. What is germane to this appeal, first in point of time is the lodgment of an FIR dated 13.08.2015 before the Officer In-charge, Lumdiengjri P.S. Shillong by one Shri Shansing Sun son of late Hormon Sun, informing that on 13.08.2015 at about 6:00 AM in the morning, his nephew informed him that his grandmother, that is, the informant's mother Hormon Sun was found dead lying in a pool of blood in her house obviously murdered, for which necessary legal action was requested to be taken.
13. On receipt of the said FIR, a criminal case being Lumdiengjri P.S. Case No. 77(08) 2015 u/s 302 IPC was registered and WPSI L.D. Sangma was entrusted to investigate the matter.
4. In course of investigation, the Investigating Officer (I/O) had visited the place of occurrence and found that someone had hit the deceased on the head resulting in her death and in the process, some cash, gold earrings and a mobile phone belonging to the nephew of the informant was also stolen.
5. The I/O has then questioned some witnesses and in the process one Shri Vicky Sun, the grandson of the deceased was suspected to have committed the crime. This suspicion arose from the fact that some witnesses have stated that they have seen him before the commission of the crime. Accordingly, on 25.08.2015, the accused Vicky Sun was arrested in the case. It may be mentioned that he was in custody at the Mawkyrwat Police Station where he was detained on a complaint filed by his wife.
6. On being interrogated, the accused Vicky Sun confessed to have murdered his grandmother, late Hormon Sun and also to the theft of cash of ₹18000/- (Rupees eighteen thousand) and gold earrings from the possession of the deceased after hitting her with an iron pipe. On his leading, the I/O recovered ₹7460/- (Rupees seven thousand, four hundred and sixty) the gold earrings and the mobile phone.
7. The I/O has also send the body for post mortem and on receipt of the report, the cause of death was said to be mechanical asphyxia, however the actual cause of asphyxia whether strangulation, smothering etc. cannot be determined.
8. After conclusion of the investigation, the I/O has submitted the Final Report and Charge Sheet on 20.04.2016 with an observation that a prima facie case under Section 302 IPC is well established against the accused Vicky Sun and he is send to stand trial for the same with witnesses who will provide the required evidence to prove the case requested to be summoned.
29. The learned Sessions Judge on 08.11.2017, then framed charge under Section 302 IPC against the accused Vicky Sun in Sessions Case No. 25 of 2016, to which charge the accused pleaded guilty. However, the learned Sessions Judge opined that the accused person is entitled to face trial for interest of justice and fair trial and has proceeded to issue summons to the witnesses.
10. The Prosecution then brought forward 17(seventeen) witnesses to prove its case and on completion of recording of the evidence of the said witnesses, the statement of the accused under Section 313 Cr.P.C was recorded, where apparently once again, he has admitted to have murdered his grandmother, the deceased. The accused also declined to examine any witnesses from his side.
11. As stated above, after hearing the arguments of the Public Prosecutor and the learned Legal Aid Counsel on behalf of the accused, the learned Sessions Judge vide the impugned judgment and order has convicted the accused and sentenced him to undergo life imprisonment.
12. Being highly aggrieved with the said judgment and order of conviction dated 15.07.2019, the accused has then preferred this instant appeal.
13. On perusal of the judgment passed by the learned Sessions Judge in this matter, it is seen that the learned Sessions Judge has highlighted the important points found in the evidence of the prosecution witnesses and having discussed the same, has come to a conclusion that there is no direct evidence as regard the complicity of the accused/appellant, but on circumstantial evidence a finding has been arrived and that the accused/appellant is guilty of the offence of murder and was accordingly convicted u/s 302 IPC.
14. The learned Legal Aid Counsel, Mr. S.D. Upadhaya appearing on behalf of the accused/appellant has assailed the impugned judgment and order and has submitted that the learned Trial Court had committed a grave error in law and facts while coming to the conclusion it had by convicting the 3 accused/appellant u/s 302 IPC. There was no proper appreciation of evidence as discrepancies in the evidence of the prosecution witnesses have not been taken into account.
There was no eyewitness to the alleged crime and the "last seen theory" principle applied by the learned Sessions Judge has no basis to prove the guilt of the accused/appellant.
On the opinion of the doctor who was examined as P.W 7 that the cause of death is mechanical asphyxia, however the actual cause of asphyxia whether strangulation, smothering, etc. cannot be ascertained and in such circumstances, the death of the victim was not confirmed to be homicidal in nature, the prosecution could not establish the guilt of the accused/appellant.
That the learned Sessions Judge has based the conviction of the accused/appellant only on the ground of his plea of guilt, but have failed to consider the fact that the accused himself has stated in his statement u/s 313 Cr.P.C that his intention was to rob the victim and not to kill her. However, because of a scuffle between them, he managed to hit the victim on the head as a result of which, he fell down and after stealing the cash, gold earrings and mobile phone, the accused/appellant fled from the scene. This fact was also stated by the Investigating Officer in her deposition before the court when she said that "according to me the intention of the accused was to rob and not to kill". However, this aspect of the matter was not taken note of by the learned Trial Court.
15. Mr. Upadhaya has also submitted that from the facts and circumstances of the case, it is apparent that the case would fall under Exception 4 of Section 300 IPC and the punishment at the most may be imposed in Part II of Section 304 IPC.
16. In support of his argument, Mr. Upadhaya has cited the following case laws.
(i) Govind Singh v. The State of Chattisgarh: AIR 2019 SC 2120, paragraphs 6 to 10;4
(ii) Ankush Shivaji Gaikwad v. State of Maharashtra: (2013) 6 SCC 578, paragraphs 1, 2, 3, 6, 9, 10, 11, 13, 16, 18, 19, 22, 23, 26 & 68;
(iii) Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan:
(2013) 5 SCC 722, paragraphs 1, 2, 3, 32, 34, 35 & 41;
(iv) Narayan Manikrao Salgar v. State of Maharashtra: (2012) 8 SCC 622, paragraphs 1, 2, 12, 13, 29, 30, 31, 32, & 33;
(v) Kulesh Mondal v. State of West Bengal: (2007) 8 SCC 578, paragraphs 1, 2, 8, 9, 12, 13, 14 & 15;
(vi) Gali Venkataiah v. State of Andhra Pradesh: (2007) 14 SCC 475, paragraphs 1, 2, 9, 10 & 11;
(vii) Sandhya Jadhav v. State of Maharashtra: (2006) 4 SCC 653, paragraphs 1, 2, 3, 5, 6, 8, 9 & 12.
17. In response, the State Respondent appearing through Mr. B. Bhattacharjee, learned AAG has submitted that from the evidence of P.W.s 2, 3, 12, 16 and 17 read together with the statement of the accused/appellant made under Section 313 Cr. P.C., there is no doubt that the only conclusion that can be arrived at is that the accused/ appellant has committed the crime as alleged.
18. Circumstantial evidence coupled with the fact that Exhibit 3, the Panchnama which was proved by P.W. 16, which is the re-creation of the crime scene led by the accused/appellant himself has support the case of the prosecution, it is further submitted.
19. The learned AAG has also submitted that the circumstantial evidence in this case leading to the guilt of the accused/appellant are the recovery of the materials, including the gold earrings and the mobile phone at the instance of the accused/appellant, the fact that he was last seen in the vicinity of the place of occurrence, particularly by the P.W. 3 & 4, the extra judicial confession and his own statement under Section 313 Cr.P.C.
520. As to the submission of the learned Legal Aid Counsel that this is a case which falls under the provision of Section 304 Part II IPC being one which can be determined under Exception 4 of Section 300 IPC, the learned AAG has submitted that the facts and circumstance of the case and the evidence adduced would prove to the contrary.
21. In support of the Respondent's case, the learned AAG has relied on the following case laws:
i) State of Maharashtra v. Sukhdev Singh & Anr: (1992) 3 SCC, 700, paragraph 51;
ii) Rajender @ Rajesh @ Raju v. State of (NCT of Delhi): (2019) 10 SCC 623, paragraphs 12.2.3;
iii) Dharnidhar v. State of Uttar Pradesh & Ors: (2010) 7 SCC 759, paragraph 32 and
iv) Paul v. State of Kerela: (2020) 3 SCC 115, paragraphs 19 &
20.
22. In conclusion, it is submitted that there is no infirmity present in the impugned judgment and order, the same is therefore not liable to be interfered with by this Hon'ble Court.
23. We have heard the submissions and contention of the learned counsels for the rival parties and we have also perused the impugned judgment and order as well as the evidence on record. The facts of the case need not be repeated as the same has been well drawn out above.
24. From the argument of the parties, what could be understood is that the case involving the accused/appellant is one which has been proved only on the basis of circumstantial evidence. To this extent, the learned Legal Aid Counsel for the appellant has not only assailed the impugned judgment contending that the same was arrived at based on circumstantial evidence where the chain is required to be completed, but evidence would show that there are discrepancies which cannot point to the guilt of the accused/appellant.
625. In this regard, a perusal of the evidence would show that P.W 1 Shri Shran Singh Sun the informant has stated that his mother (late) Hormon Sun was murdered by the accused/appellant herein. However, this statement was made on the basis of what he heard from others it is therefore hearsay evidence and as such, this evidence is not worthy. P.W. 2 Shri. Danny Nongrang has also deposed that he heard the scream of the brother of the accused stating that his grandmother had fallen from the bed and the body was lying in the floor surrounded by a pool of blood and on seeing the scene, he along with others informed the matter to the village headman. This witness has also not been able to help the prosecution's case as he could not say who has murdered the victim. P.W. 3 Shri Hambok Singh Lyngdoh Lyngkhoi in his deposition has stated that sometime in the year 2016 @ 7:30 PM (actually it was in the year 2015) when he returned from work, his wife Pooja Sun called him to identify whether a person standing in their compound is Gundu (Vicky) or not, to which he recalled that he called him three times, but the said person did not respond. P.W. 4 Smti Pooja Sun has also deposed that in the month of August 2015, she remembered seeing her brother Vicky Sun (accused) near their compound to which she immediately called her husband P.W. 3 to identify him. However, on P.W. 3 calling his name three times, the accused did not respond. P.W. 5 Shri Rain Augustine Lyngdoh is the Chairman of Bishop Falls, Local Committee who has deposed that upon hearing about the death of the victim, he went to the residence and met the relatives. This witness has also deposed that he was requested by the police to sign one police paper (Seizure List) to which, he was informed that in the list, seizure of small pipe, chappals, clothes and small blankets was made. P.W. 6 Shri Issac Newton Shullai who was holding the post of Secretary Bishop Falls, Local Committee was also one of the seizure witness who recalled that the police have seized one small water pipe, the rest he does not remember. P.W. 7 Dr. Praksingh Nongrum is the District Medical & Health Officer, Shillong who had conducted the post mortem on the dead body of the deceased and on the findings made by him, his opinion is that the cause of death is mechanical asphyxia associated with head injury. P.W. 8 Shri 7 Biswajit Dutta, UBC/64 is a Police Constable who was detailed to accompany the I/O and the accused to the crime scene, wherein he also video graphed the whole movement/episodes. P.W. 9 Smti. Newverlyne Nongkynrih is the Assistant Director, Chemistry Section posted at Forensic Science Laboratory, (FSL), Shillong who has deposed that she was given a parcel consisting of some body parts including stomach and its contents, parts of heart, lungs, liver spleen and kidney for examination, the result of which came out negative for chemical poisons. P.W. 10 Smti Dolphinolinrose Lyngdoh is also a Deputy Director at the Forensic Science Laboratory (FSL), Shillong who was tasked with the examination of liquid blood sample collected from the victim and also dry blood gauze collected from the place of occurrence and has accordingly, came up with the result that the blood stain is human in origin and blood group-A was detected. P.W. 11 Shri Trasningstar Thongni is not a material witness as he has not stated anything of substance. P.W. 12 Smti Kanbalin Thongni is the wife of the accused who has basically deposed that the accused had told her that he had murdered his own grandmother the deceased victim. P.W. 13 Shri Miustine R. Marak was the O/C of Lumdiengjri P.S in the year 2015 who has received the FIR and registered the same as Lumdiengjri P.S Case No. 77(8)2015 u/s 302 IPC. P.W. 14 Shri Robert Nongspung was posted as an attaché officer at Lumdiengjri P.S in the year 2015 and he was one of the seizure witness as regard the pair of golden earrings with yellow stone seized from Keniong village. P.W. 15 Shri Vishal Sun is the younger brother of the accused who has deposed that he had received a phone call from the wife of the accused (P.W. 12) who informed him that his brother i.e. the accused had murdered his grandmother. This witness had also accompanied the police party along with the accused to Keniong village from where the pair of earrings belonging to the deceased victim was found and seized. He is also one of the seizure witness of the said earrings. P.W. 16, Shri Edelson Jala Kharbhih is also one of the police officer posted at Lumdiengjri P.S in the year 2015 who has accompanied the I/O and the accused on the recreation of the crime scene in which the accused had retraced the steps taken by him till he reached the 8 place of occurrence and how he entered the house from a window into the room of his grandmother i.e. the deceased victim. The I/O had prepared a Panchnama (Exhibit 3) in which this witness has also appended his signature. P.W. 17 Smti. Lenchi D. Sangma is the Investigating Officer of the case and in her deposition, she has narrated the steps taken in course of investigation.
26. What has emerged from the evidence of the prosecution witnesses is that there has occurred a homicidal death of the victim Hormon Sun who was found lying in a pool of blood in her bedroom of her house. The cause of death according to the post mortem report is death by mechanical asphyxia associated with head injury. Further, the object which was probably used to inflict the death blow was a small water pipe. It may be mentioned that though the P.W 5 & 6 in their depositions had stated that they were made to sign on police paper where the list of certain articles was noted, which is probably the seizure list, however the same was not reflected in the seizure list Exhibit 2, nor was it produced as a material exhibit. Therefore, though the death could not be disputed, the cause of death could not be established.
27. The only link between the death of the victim and the accused/appellant is found in his own confession as well as on his leading to recover the gold earrings which belonged to the victim and most importantly, the re-creation of the crime scene which was reflected in Exhibit 3, the Memorandum/Panchnama which is the discovery of the place of occurrence.
28. Again, his confession to the crime before his own wife, who was examined as P.W. 12 and which statement has not been dislodged even in her cross-examination, the evidence of the P.W. 3 where he have stated that on seeing someone who looked like the accused in their compound, he called out to him by his nickname, but the person fled away and which statement was confirmed by the accused himself that he did not response to the same, coupled with the fact that at the time of framing of charge, he has pleaded guilty and finally, in his statement under Section 313 Cr.P.C., he has also elaborately given the account of his commission of the crime, would only 9 goes to prove that under the facts and circumstances of the case, circumstantial evidence is present to pin the accused/ appellant to the crime.
29. Another aspect of the matter that has to be considered is the motive and intention of the accused/appellant at the time of commission of the crime. In his statement under Section 313 Cr.P.C., he said that his initial intention was to rob his grandmother, but when he entered her bedroom, she saw him and tried to shout and was beating him with one small water pipe, to which he snatched the said water pipe from her and hit her on the head, then he fled away from the scene. This, then would show that the intention was only to rob and in course of the same, as stated above, in the scuffle, the accused hit the victim on the head with the small water pipe. There is no indication of any motive to commit murder.
30. In the light of the materials on record, most importantly, the confession of the accused/appellant, we are convinced that the accused/appellant can be the only person responsible for the death of the deceased victim Hormon Sun and he was rightly convicted by the learned Sessions Judge.
31. All the authorities cited by the learned AAG revolves mostly on the question of whether a statement recorded u/s 313 Cr.P.C can constitute the sole basis for conviction of an accused. In the light of what has been discussed above, we find that this issue has been answered in the positive as the accused has been rightly convicted by the learned Trial Court on the basis of his statement u/s 313 Cr.P.C., his confession before P.W. 12 and his leading to the discovery of the stolen materials, including the gold earrings as well as the re-creation of the crime scene led by the accused himself.
32. However, as to the quantum of sentence meted out to the convict/appellant, we are of the considered opinion that the consideration would not come within the purview of Section 302 IPC, since there is evidence that Exception 4 to Section 300 IPC may be applicable to the case of the appellant.
1033. On the appellant's contention that the case would fall under the provision of Exception 4 to Section 300 IPC which reads as follows: -
"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."
A number of case laws was cited. However, for the purpose of deciding the case in hand, a particular case cited by the learned Legal Aid Counsel i.e. the case of Ankush Shivaji Gaikwad (supra) is worth mentioning as the facts and circumstances of that case is almost similar to the case of the appellant.
34. In the said case of Ankush Shivaji Gaikwad (supra), the factual matrix is that the appellant therein and two others were walking past the field of the deceased when a dog owned by the deceased started barking at them. Angered by the barking of the animal, the appellant is alleged to have hit the dog with the iron pipe that he was carrying in his hand. The deceased objected to the appellant beating the dog, whereupon the appellant started abusing the former and told him to keep quiet or else he too would be beaten like a dog. The exchange of hot words, it appears, led to a scuffle between the deceased and the accused persons in the course whereof, the appellant hit the deceased with the iron pipe in the head, on account of the injuries inflicted upon him the deceased fell to the ground while all the accused persons ran away from the spot. The deceased succumbed to his injuries. Hence the case.
35. The matter then travelled to the Hon'ble Supreme Court, where reference was made to a number of cited decisions on the subject, i.e. Exception 4 to Section 300 IPC which have led the Apex Court under the facts and circumstances of the particular case to come to an opinion that the said Exception 4 to Section 300 IPC is applicable and the case would therefore more appropriately fall u/s 304 Part II IPC.
36. Dealing with Exception 4 to Section 300 IPC, the Hon'ble Supreme Court has held that this exception can be invoked on four requirements which must be satisfied namely, (i) it was a sudden fight (ii) there was no 11 premeditation (iii) the act was done in a heat of passion and (iv) the assailant has not taken any undue advantage or acted in a cruel manner.
37. Applying the above requirements to the case of the appellant, what can be deduced is that the intention of the appellant was to rob from the house of the deceased. There is no evidence that he carried any weapon with him. On entering the house through the window, according to his version, the deceased woke up on seeing him and started beating him with a small water pipe and in the scuffle, he must have snatched the pipe from her hand and hit her on the head with the same. Thereafter, on seeing her falling to the ground, he fled from the house.
38. On this, only one conclusion can be reached i.e. there was no intention to kill the deceased, therefore, premeditation is not present. The blow on the head was hit as a result of a scuffle which could be construed as the act being done in a heat of passion and there is no evidence that the appellant acted in a cruel manner.
39. In view of the above, we find that the case of the appellant would fall under Exception 4 to Section 300 IPC and resultantly, the conviction u/s 302 IPC is hereby altered to Section 304 Part II IPC and punishment of 10 (ten) years imprisonment would be sufficient. This sentence would merge with the period already undergone by the appellant and be calculated accordingly till completion of the same.
40. This appeal is therefore partly allowed as indicated above and disposed of accordingly. No cost.
41. Registry to return the Lower Court case record to the concerned Court.
(W. Diengdoh) (R. More)
Judge Judge
Meghalaya
09.04.2021
"D. Nary, PS"
12