Gauhati High Court
Sing Terrang vs The State Of Assam on 3 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 338
Author: S. Hukato Swu
Bench: S. Hukato Swu
Page No.# 1/11
GAHC010270452018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J) 102/2018
1:SING TERRANG
S/O. LANGGTUK TERANG, VILL. BONTENG TERANG GAON, P.S. BOKAJAN,
DIST. KARBI ANGLONG.
VERSUS
1:THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. M. DUTTA, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
Date of Hearing & Judgment : 03.02.2020
BEFORE
HON'BLE MR. JUSTICE mir alfaz ali
HON'BLE MR. JUSTICE S. HUKATO SWU
JUDGMENT & ORDER
(ORAL)
(S. Hukato Swu, J) Heard Mr. M. Dutta, Amicus Curiae for the petitioner and Ms. S. Jahan, learned P.P. for the respondent.
2. This is a criminal jail appeal directed against the judgment and order of the Court Page No.# 2/11 of Sessions Judge, Karbianglong dated 03.07.2018 convicting the accused Sing Terang, s/o Langtuk Terang, Village of Bonteng Teran Gaon, Bokajan, Karbi Anglong for the murder of Mrs. Kardi Teranpi, village Bonteng, Teran Gaon P.S., Bokajan district, Karbi Anglong.
3. The brief story of the prosecution is that on 23.08.1988, informant lodged a complaint with the Dillai Outpost on 22.08.1988, that the deceased Kardi Teranpi was killed in her paddy field while she was harvesting. The accused person shot dead the deceased at about 3:30 P.M. A case was registered under Bokajan Police Station as case No. 190/88 under Section 302, IPC. The investigation examined as many as 17 witnesses. Statement of accused under Section 313, of the Code of Criminal Procedure, 1973 (Cr.PC) was recorded. Statement of accused under Section 164, of the Cr.PC was also recorded and on leading of evidence, the learned District & Sessions Judge found accused guilty of the offence under Section 302, IPC and convicted the accused to undergo rigorous life imprisonment and to pay a fine of Rs. 2,000/- and in default to undergo 6 months S.I. The learned District Judge proceeded to convict the accused by virtue of circumstantial evidence which was recorded through different witnesses and corroborated with the confessional statement of the accused. Despite the absence of eyewitness in the case, found the accused to be guilty of the offence under Section 302, IPC. The evidence shows that the accused, on 22.08.1988, went to the paddy field for hunting wild pig from the paddy field and on arrival at the paddy field he fired upon the woman, namely Kardi Teranpi, deceased whose field was situated by the side of the paddy field of accused believing her to be a wild pig and thereby caused the death of the deceased. Thereupon, the accused, on his own volition immediately after the Page No.# 3/11 occurrence surrendered before the police with the gun and cartridges. In his confession before the Magistrate, the accused stated that often wild boar came out to graze in the paddy field in their area. The wild boars/pigs sometimes appeared during the night hours and sometimes during the day time. On the day of occurrence, he came out of his house at about 2 P.M. alongwith his SBBL and went towards the paddy field in search of wild boars. On the way, he asked the little children of the deceased if anybody was working in the paddy filed. They replied that no one was in the paddy field. On reaching the paddy field, soon after, he heard some sound like that of a wild boar grazing (chap, chap, chap). He thought that a wild boar was eating paddy in the field. He saw something like a wild boar. Satisfied that it was nothing but a wild boar he shot at the moving object and it hit the head of the woman and she died instantaneously, without making a sound. When he went to the exact spot, he saw that she was a woman and not a wild boar. She was his own uncle's daughter. He could recognize her on reaching the spot and on seeing her face. He had shot the gun from about 60 feet away and he did not know that a person was there. He thought that it was only a wild boar as he had seen something black like object. After the incident he came to know that it was not a wild boar but a woman and that she was sitting in the paddy field and eating khira. After the occurrence of the incident he went to Bokajan Police Station with his gun and surrendered there and told the police what had happened there. This statement of the accused has corroboration with the statement of PW-14, Mr. Ganadhar Boarah, who was the OC at the relevant time.
4. PW-14, Mr. Ganadhar Borah, who was the OC at the relevant time testified that at about 4:45 P.M., one Shri Sing Terrang, S/o - Lantukk Terrang, village Banglong Terang Page No.# 4/11 Gaon appeared before him at Bokajan Police Station with one SBBL gun bearing registration No. B/18964 alongwith one empty cartridge and 3 (three) other loaded cartridge stating that on the day, he went to the paddy field to hunt for wild boar from his paddy field. On arrival at the paddy field he fired at one woman, namely, Karde Teranpi whose field was situated by the side of his paddy field believing her to be a wild boar and thereby, caused the death of the victim Kardi Teranpi. He was accompanied by Tarnsag-AO DC, SP Lal Mizan AO of Mouza Khatkhati Chariali. He surrendered pleading guilty and he seized the SBBL gun with the cartridge in the presence of Temsu Ao. He recorded the statement of Temsu Ao and accused Sing Terang. He was kept and sent to police custody.
5. PW-15 is Dr. Tapan Singh Ingti, who examined the dead body of the deceased. In the Post Mortem report he has reported that 2 (two) numbers of deep penetrating wound could be seen with fracture of the skull exposing the brain matter. (1) There were lacerated wounds of 1 inch at the left side of the skull, deep penetrating; (2) penetrating wound 6 inch at the right side over the scalp with fracture of the skull with brain matter coming out. Small fragment of bullet found over the right skull was handed over to the police. The information of death given by the doctor was that the deceased died due to brain hemorrhage with destruction of the brain matter caused by wound penetrating due to gunshot which led to shock and cardiac arrest and death.
6. PW-1 is Leela Engleng who is the husband of the deceased. He deposed that on the fateful day, the deceased went to the paddy field but she did not come back in the evening. The daughter, Samali Englengpi returned saying that she could not find her mother in the paddy field when she went to search for her for feeding her younger Page No.# 5/11 sister. He got alarmed and called her out aloud but did not get any reply. So he went to his father's village where Zanget Terang informed that Sing Terang, accused met Lankam at Bokajan and told him that he killed his wife with his gun and he was going to the Police Station to surrender. Then he went and found the dead body of his wife lying there. He also stated that the accused had come to their house asking the hand of Sukinj Kandri Englengpi for marriage but his wife and daughter did not want to agree to the marriage proposal. The accused killed his wife on that fateful day. In his cross he stated that accused had bad reputation in the village as he had already married 2 to 3 girls and used to stay as Pishuke Men (Ghar Jowais).
7. PW-2 is Ms Kanduri Englengpi, who stated that she knows the accused Sing Terangpi and that the deceased was her mother. She was killed by the accused. The accused had sent proposal of his marriage to her through his mother to their home. She had no desire to marry and her mother also did not want. Both turned down the proposal which was conveyed to them in the month of May. She did not witness the killing of her mother. After the proposal of marriage of accused was turned down by them, there occurred some quarrel and they did not have cordial relationship.
8. PW-3 is Sonali Englengpi who is the daughter of the deceased. She testified that the accused shot her mother in the paddy field. She saw the accused go to jhum kheti field with the gun and saw him return also after shooting her mother. As her mother did not return for a long time, her father and others searched for her and at night found her body in the field. She heard the gun fire after the accused went towards his mother in the jhum kheti field. Her mother went to the field around 2:00 P.M. She was a small girl then and she did not remember exactly where she was injured. In her cross she stated Page No.# 6/11 that she did not see the firing.
9. PW-4 is Rangdo Terang who stated that he filed the First Information Report (FIR) at the instance of Lila Engleng which was read over to him and he agreeing with the contents put his signature.
10. With the above evidences the learned District & Sessions Judge found the accused guilty of offence under Section 302, IPC and the present appeal is against the impugned judgment challenging the validity of the conviction recorded and sentence awarded by the learned trial Judge on the ground that there is not a single eyewitness to substantiate the charge under Section 302, IPC. Furthermore, the appellant has challenged the legality of the confessional statement which was recorded under Section 164, of the Cr.PC in the presence of the Magistrate. Therefore, the learned District Judge was in error of recording conviction on the basis of the confessional statement under Section 164, of CrPC.
11. Mr. M. Dutta, learned Amicus Curiae has argued that the statement recorded under Section 164, IPC suffers from the defects of guidelines given under the provisions. The accused surrendered himself on 22.08.1988 and he was produced before the Magistrate on 23.08.1988 and on 24.08.1988, his confessional statement was recorded. There was no time given for cool reflection and hence, the confessional statement so recorded cannot stand the test of law which requires that sufficient time should be given to the accused for cool reflection. Summing up his argument, he has submitted that the confessional statement is not in accordance with the law and there is no eyewitness in the case, hence, once the confessional statement does not stand the test of law the conviction is illegal as it is based solely on circumstantial evidence.
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12. Appearing for the prosecution, Ms. S. Jahan argued that the sentence does not suffer from any legal infirmity because it is borne on the records that the accused has voluntarily surrendered himself and he voluntarily offered to make the confessional statement before the Magistrate. 12 hours' time was given for cool reflection by the Magistrate after due explanation that the statement may be used against him and he is not bound to make the confessional statement. There is a confirmation of the O.C. who appears as PW-14 that the accused appeared before him on 22.08.1988 and surrendered alongwith witnesses stating that he had killed the victim, Kade Terang and also surrendered his SBBL gun alongwith one M3 cartridge and 3 reloaded cartridges. All these facts prove that the accused is guilty of the offence and there is the clear proof that the confessional statement so recorded was free from any influences. The statements of PW-1 & PW-2 also suggests that the accused and the deceased entertained animosity between them because of the fact that the proposal to marry PW- 2 was refused by the deceased and PW-2. For all these reasons, there is sufficient evidence to prove that the accused had the intention of killing the deceased.
13. We have heard the submissions forwarded by the learned P.P. and the learned Amicus Curiae.
14. The substantial thing to be considered in a confessional statement is the purity of the statement and its voluntariness. We are to test whether it is free from any external influences. If it is ascertained that the statement has been recorded without coercion and on pure volition of the maker is found to be trustworthy, it cannot be discarded. In the case at hand, the accused on his own volition surrendered before the O.C. Bokajan, which has to be believed considering that the accused surrendered himself Page No.# 8/11 along with atleast three witnesses and there is no evidence of coercion on record. He further volunteered to record the confessional statement. When he was produced before the Magistrate as required under Section 164, Cr.PC he was warned of the consequences of recording confessional statement, he was further given 12 hours for cool reflection. In the above given facts there is no reason to doubt the purity of the statement so recorded. We are, therefore, of the view that the confessional statement is free from any legal infirmity.
15. The fact that the accused had killed the victim is undeniable. However, we are curious to consider the following points to arrive at a judicious judgment:-
1. whether the act of the accused, in the facts and circumstance of the case would make him liable for an offence of murder?
2. whether it was a mistake of fact and could be considered as a homicide, which is not culpable?
To examine this, it will be useful to go through evidence that has been placed before the learned District Judge. Materials borne out of record are that, the accused, on the fateful day of the incident, i.e. 22.08.1988 went to the paddy field for the purpose of shooting wild boars which destroyed the paddy fields. It is stated in his confessional statement that he heard a sound resembling the chewing of food by wild boar, translated by him as "chap chap chap". Thereafter, he saw something that was black and thereupon, he fired into the bush thinking that it was a wild boar. The narration further goes that he went to the spot and when he saw what he had shot, it was discovered that he had shot a woman and not a wild boar. Thereafter, he immediately went to surrender himself before the police along with atleast 3 (three) Page No.# 9/11 witnesses. While going to the police station, he also revealed that he had killed the wife of the complainant and he was going to Bokajan Police Station to surrender himself. Considering the consequential behavior of the accused we do not find that there was intention to cause the death of the victim by the accused. No one denies the fact that pigs destroys the fields during the harvest time, it is natural. There is also likelihood that anybody in the rural area may do this as wild boar is a delicacy among the tribals. Furthermore, he asked the little children of the deceased whether there was anybody in the field to which they replied that there was no one in the paddy field. If this statement of the accused is to be accepted, there can be no doubt at all that he has no premeditation. He was ascertained of the fact that there was nobody in the field by the statement of the children of the deceased. We are compelled to believe that he is free from wrongful motive/intention. This statement has not been cross-checked by the prosecution, however, the confessional statement being free from any legal and procedural lapses, the statement may be taken as a piece of evidence. After he fired, he went to the spot and looked out for what he had shot and it was discovered that he had shot a woman.
If he had the intention of killing the woman, he would not go to the spot and would have gone away. Again, it is very clear that the accused after realizing the mistake voluntarily surrendered before the police, which also suggests that he had no intention of causing death. All these actions of the accused suggests that there was no premeditation to kill the deceased. We are not unaware of the fact that the proposal put by him to marry PW-2, the daughter of the deceased caused disharmony between the parties. However, if vengeance of a dejected suitor is to be considered then, he would Page No.# 10/11 have shot the girl rather than the mother as is naturally expected. Hence, we are unable to consider that vengeance is a motive in the instant case. The present facts and circumstances is tailor suited for provisions under Section 299 of the IPC. Illustration (c), wherein it illustrates as follows:-
"(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was committing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by committing an act that he knew was likely to cause death."
16. In our considered opinion, the present case, without any doubt is covered by illustration (c) of the provisions of Section 299, IPC. Though his action of killing wild boar is illegal, he has no intention of killing the deceased. It is a mistake of fact which is classified as homicide not culpable.
17. In the given facts and evidences we are unable to arrive at the decision that the accused had intention to kill the victim or even to cause any injury to her. We do not see existence of pre-meditation. He enquired from the children of the deceased whether anyone was in the field as he went to hunt for wild boar. All his actions before and after the killing of the victim is suggestive that he had no intention to cause death or to cause any injury to the victim. However, we notice that the appellant acted in haste without taking due care and caution. Had he taken due care and caution, perhaps the death of the victim could have been avoided. Therefore, the death of the victim in the facts and circumstances can only be attributed to rash and negligent act of the appellant.
18. From the discussions of the above facts, it is clear that the case falls under Section 304 A, IPC. We, therefore, set aside the conviction and sentence of the appellant under Section 302, IPC and convict him under Section 304A, IPC.
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19. Accused is accordingly sentenced to undergo 2 years rigorous imprisonment and to pay a fine of Rs. 2,000/- i/d to undergo 3 months simple imprisonment. The period of detention shall stand set off.
20. Appeal is allowed to the extent indicated above.
21. We direct the District Legal Services of Karbi Anglong to examine the case and provide compensation under Section 357A.
22. Having appreciated the services rendered by the learned Amicus Curiae, Mr. M. Dutta, we provide that he shall be entitled to provisional fee of Rs. 7,500/- which shall be paid by the High Court Legal Services Committee on production of a copy of this judgment and order.
23. Let the LCR be sent back.
JUDGE JUDGE Comparing Assistant