Gauhati High Court
Depon Saikia vs The State Of Assam on 14 June, 2012
Equivalent citations: 2013 CRI LJ (NOC) 402, (2013) 121 ALLINDCAS 361 (GAU), (2012) 5 GAU LR 415, (2013) 2 GAU LR 241
Author: N.Kotiswar Singh
Bench: A.K.Goel, N.Kotiswar Singh
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM:NAGALAND:MEGHALAYA:MANIPUR:
TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT
CRIMINAL APPEAL NO. 132(J)/05
Shri Depon Saikia ... Appellant
-VERSUS-
State of Assam .... Respondent
BEFORE
THE HON'BLE THE CHIEF JUSTICE MR.JUSTICE A.K.GOEL
THE HON'BLE MR.JUSTICE N.KOTISWAR SINGH
For the Appellant :: Mr. Prabin Mahanta, Amicus Curiae
For the respondent :: P.P. Assam
Date of hearing :: 04.11.2011
Date of Judgment & Order :: 14.06.2012
JUDGEMENT AND ORDER (CAV)
N.Kotiswar Singh,J.
[1] The present criminal appeal has been filed against the judgment dated 30.9.2005 passed by the learned Adhoc Addl. Sessions Judge, Lakhimpur at North Lakhimpur in Sessions Case No. 136(NL)/03 by which the appellant was convicted of the charge of murder of his father punishable u/s 302 of the IPC and was sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.500/- and in default of payment of fine, to undergo Rigorous Imprisonment for a period of another 6(six) months.
[2] On 12.12.2002, an ejahar was lodged by the wife of the deceased, Ribonath Saikia stating that her husband had come to Dhalpur on 10.12.2002 at around 7.00pm. However, thereafter, even after making a search he could not be found. It is reported in the said ejahar that at around 10 am on 12.12.2002, some unknown miscreants had killed him by stabbing with a dagger and felled him in the road side ditch along PWD 2 road near Pisola river. After receipt of the aforesaid ejahar at 4.00pm of the same day, a case was registered and an investigation by the police was set into motion.
[3] After the aforesaid investigation was initiated, the police went to the place of occurrence where the dead body of the deceased Rubinath Saikia was found lying on the road side ditch. Inquest was held over the dead body which was later sent for post mortem examination.
[4] It is the case of the prosecution that acting on a tip-off, the Investigating Officer arrested the appellant on 12.12.2002 from a hotel where he was working and was interrogated. During interrogation, the appellant confessed to his guilt and on the basis of his disclosure, the police recovered and seized the weapon of offence in presence of witnesses, which was a small dagger fitted with a wooden handle measuring about 1 foot. On the basis of the confessional statement made before the police, the Investigating Officer committed the appellant on 13.12.2002 before the learned Chief Judicial Magistrate and made a prayer for recording his confessional statement. Accordingly, the appellant was produced before the Judicial Magistrate First Class on the same day at around 1 pm. Thereafter, the appellant made his confessional statement before the Judicial Magistrate under section 164 Cr.P.C. at around 4 pm on the same day.
[5] The learned Trial Court after considering the confessional statement and other evidence on record, came to the conclusion that the charge of murder punishable under section 302 of I.P.C. has been proved against the appellant.
[6] In course of the trial, the learned Trial Court framed two issues to be decided:-
"i) Whether the accused committed the offence of killing his father Rebo Saikia?
ii) Whether the death of Rebo Saikia is a culpable homicide amounting to murder?"3
[7] As regards the first point, the learned Trial Court held that there is no direct witness account except the confession of the appellant and the recovery of the weapon of offence at the instance of the appellant.
[8] The learned Trial Court observed that the appellant while being examined u/s 313 of Cr.P.C. had not disputed the incident and had admitted that he made a confession before the Magistrate.
[9] The learned Trial Court had found the aforesaid confessional statement made under section 164 Cr.P.C. to be true and reliable. The learned Trial Court referring to the evidence of PW-7, Ajoy Kumar Barua, who was the Magistrate before whom the aforesaid confessional statement was made on 13.12.2002, observed that the Magistrate gave due warning and caution about the consequence of the confession to the appellant when he was produced before him at 1 pm. It was stated that the appellant expressed his willingness to confess to his guilt. Accordingly, the appellant was placed under custody of his office in his office chamber for reflection for about 3 hours. Again, at 4 pm when the appellant was asked by the Magistrate whether he wanted to confess to his guilt, the appellant insisted on confessing. The Magistrate (PW 7) stated that he explained all the statutory questions and also put certain searching questions to the appellant to ascertain that the appellant was going to confess voluntarily. The learned Trial Court after examining the evidence on record, the prescribed form for recording confessional statement, the certificate given by the Magistrate, the relevant entries in the G.R. Case record was of the opinion that the said confessional statement made by the appellant was voluntary.
[10] The learned Trial Court also held that there was no duress or any sort of torture upon the appellant to make such a confession. The learned Trial Court held that it is not possible to reject the confession merely because only 3 hours had been given for reflection if it is otherwise found acceptable. The learned Trial Court also held that judicial confession made by the appellant was corroborated by other evidence. The learned 4 Trial Court referred to the post mortem report and evidence of the Doctor, P.W-4, Dr.Hridayananda Boruah. The doctor had found:-
" Several crescentic finger marks present on the neck, one situated on the right side of the neck, below the lower jaw- three others were situated on the left side of the neck obliquely downward and upward and one below the other.
Dissection of the neck shows bruises in the layers of the skin muscles and in the tissues on the floor of the mouth.
Four sharp cut injuries were seen on the back, two on either side of the midline, dimensions-length 3 cms, breadth ½ cm, depth 2 cms.
Blood stain was seen on the left nostril.
Face was congested (flushing).
The injuries were ante mortem in nature."
[11] The doctor opined that the cause of death was asphyxia as a consequence of manual strangulation and the sharp cut injuries on the back were associated injuries. The learned Trial Court held that the discovery and seizure of the weapon of offence at the instance of the appellant corroborated the confessional statement. The learned Trial Court relied upon the evidence of Investigating Officer as well as the independent witnesses, PW-4 and PW-5 to establish the discovery of the weapon of offence.
[12] In view of the above, the learned Trial Court held that there is no room for doubt that it was none other than the appellant who had committed the offence and that the prosecution had been able to establish the complicity of the appellant beyond reasonable doubt. The learned Trial Court also held that the motive for killing the deceased had been established as the appellant could not bear the torture meted out to his mother by his deceased father and from the evidence on record, it is seen that there was no sudden or grave provocation to the appellant to kill his father but was planned as can be gathered clearly from his confessional statement that the appellant had on the date of occurrence, offered liquor to his deceased father and on the pretext of taking him to the house of his mother's sister, took his father out of his house and at an isolated place, the appellant strangulated him and also caused repeated dagger blows on his back which had been already held to have been amply proved. Accordingly, it was held that the charge against the appellant u/s 302 of 5 IPC for committing culpable homicide amounting to murder has been proved beyond reasonable doubt.
[13] We have considered the evidence on record as well as the reasoning given by the learned Trial Court in convicting the appellant u/s 302 of the IPC.
[14] As is clearly evident from the judgment, the appellant was convicted by the learned Trial Court on the basis of the confessional statement made by him u/s 164 Cr.P.C. which was held to be corroborated by other evidences like the medical evidence as well as recovery of weapon at the instance of the appellant.
[15] We now proceed to examine the two issues dealt with by the Trial Court. The first is whether the appellant committed the offence of killing his father.
In his confessional statement, the appellant clearly states that he choked his father and dealt with several blows on his back with a dagger an then he fled from the place. In his statement made before the Court u/s 313 of Cr.P.C. he reiterated what he stated in his confessional statement. His confessional statement which is corroborated by his statement made under before the Court and the medical evidence as discussed above, makes it abundantly clear that the appellant had indeed killed his father. Nothing has been brought to our notice to render the veracity, reliability and admissibility of the confession made by the appellant doubtful.
Therefore, we also hold that the appellant had killed his father.
[16] Therefore, the next issue to be decided is whether the killing of his father by the appellant was a culpable homicide amounting to murder or whether the case of the appellant would be covered under any of the exceptions as given under Section 300 IPC so as to render such an act a culpable homicide not amounting to murder.
6[17] The appellant had admitted to have killed his father. However, he also explains that his father used to mistreat his mother. In his statement made under section 313 Cr.P.C., he stated that his father used to take the money given by him to his mother and spend it in drinking and gambling. He stated that he was very annoyed for his actions and his mind got very disturbed and one day after getting him drunk he took him along telling him that they were going to the maternal aunt's place. He further stated, "Out of anger, I choked him and inflicted several dao blows to him in his back".
In his confessional statement made under section 164 Cr.P.C. he also stated that his father had illicit relationship with other women of the village and seeing this his mind got rebellious and he could not bear all the torture inflicted upon his mother by his father.
From the above, it comes out very clear that the appellant was full of anger against his father for his alleged misdeeds and he killed his father out of anger.
In the light of the above, we will examine whether the case of the appellant comes under any of the exceptions mentioned under Section 300 IPC. If, it comes under any of the exceptions, it would be a homicide not amounting to murder and the appellant would be punishable under section 304 of IPC and if not, would be punishable under 302 IPC as had been done held by the Trial Court.
[18] Section 300 IPC defines murder. However, by way of exceptions it has been provided that culpable homicide is not murder in the following cases.
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 other 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.7
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 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's 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.
[19] We will therefore, examine if the present case comes under Exception 1 and/or 4 since there is some element of grave provocation and also whether there was absence of premeditation or intention to kill his father.
[20] While examining so, we may briefly refer to the celebrated case of K.M. Nanavati v. State of Maharashtra, 1962 Supp (1) SCR 567 , wherein the Supreme Court while dealing with the case of grave and sudden provocation observed that, "85. The Indian law, relevant to the present enquiry, may be stated thus: (1) The test of "grave and sudden" provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."8
[21] In the light of the above referred legal principles, we will revisit the facts again to ascertain if the said principles could be said to be applicable to the facts in the present case.
[22] We have before us a village simpleton, who apparently is not educated and belongs to a scheduled caste community. He seems to have been blinded by rage against his father for the mistreatment of his mother. He was not able to tolerate any further the constant harassment of his mother by his father. Out of sheer anger, he strangulated his father. He says in his statement before the Court made under section 313 Cr.P.C. that "And, then out of anger, I choked him and inflicted several dao blows on his back."
[23] We may also recollect what the Supreme Court had observed in the said case of K.M. Nanavati (supra), "84. Is there any standard of a reasonable man for the application of the doctrine of "grave and sudden"
provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to the relevant circumstances................"
Considering his rustic background, and hailing from a Scheduled Caste community, it would be reasonable to hold that the appellant would have been gravely provoked by the aggressive acts of his father towards his mother. From the evidence it seems that the said aggressive acts of his father was a continuing act which was being repeated time and again stretching the limits of his tolerance. The self control of the appellant seems to have been snapped one day and provoked him to take such an extreme step for strangulating his father. He was full of anger and it seems he was not fully under self control when he committed the crime as is evident from the statement made 9 before the Court that "And, then out of anger, I choked him and inflicted several dao blows on his back."
Further, no cogent evidences are present to indicate intention or premeditation to kill his father so as to attract provisions of section 302 of I.P.C.
The appellant was blinded by anger and provoked by the maltreatment of his mother by his father and he assaulted his father by choking and injuring him and ran away from the scene of crime without trying to find out whether his father was dead or not, thus showing lack of intention to kill his father.
No evidence has been led to show that the appellant had planned or prepared to kill his father prior to taking him out of the house and before he as killed.
Even though the appellant had a sharp weapon with him, he did not use it to cause such fatal and serious injuries. And if he really intended to kill him, he could have caused serious and fatal injuries on the vital body parts. He would not have fled the scene without ensuring that his father had died, if he really had the intention to kill him.
The acts of the appellant indicate a violent act against his father propelled by great anger and there does not seem to be a pre- planned and premeditation to kill his father. There is nothing to indicate that there were other motive or intention to kill the father. The harassment of his mother by the deceased father seems to be only contributing factor for the appellant to resort to this act of patricide.
It is also to be noted that in his confessional statement made under section 164 Cr.P.C. which he reiterated in his statement made before the Court under section 313 Cr.P.C. he never stated that he wanted to kill his father. All he stated was that he was very angry with his father for the harassment and ill treatment of his mother by his father.
The fact that he was remorseful for his act and repented for his act while making confessional statement is also indicative of lack of any willful intention or premeditated plan to kill his father. We are also aware that the appellant had been truthful, honest and forthcoming in owning up the act and did not make any attempt to mislead or hide 10 any crucial fact. It may be also noted that the appellant insisted on confessing his crime inspite of being warned by the Magistrate.
What we find is that the appellant had lost his power of self control because of the continued harassment of his mother by his father and out of uncontrollable anger, he assaulted his father which ultimately led to the death of his father.
[24] Accordingly, in the peculiar facts and circumstances of case as discussed above, we are of the view that since the appellant acted under sudden and grave provocation and also did not have an intention to kill his father, and such are of the view that the killing of his father was a culpable homicide not amounting to murder coming under the purview of Exceptions 1 and 4 of Section 300 IPC and as such, we are inclined to convert the conviction of the appellant under second part of section 304 IPC.
[25] Section 304 IPC consist of two parts. First part of Section 304 provides that 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.
The second part provides that if the said act is done with the knowledge that it is likely to cause, but without any intention to cause death, or to cause such bodily injury as is likely to cause death, it will be punishable with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
[26] We have already held that the killing of his father by the appellant was without any intention, and as such he would be punishable under the second part of Section 304 IPC.
We, accordingly, set aside the conviction of the appellant under Section 302 of the IPC by the learned Adhoc Addl. Sessions Judge, 11 Lakhimpur at North Lakhimpur under judgment and order dated 30.09.2005 passed in Sessions Case No. 136(NL)/03 and convict the appellant under second part of Section 304 IPC. The appellant had been undergoing imprisonment in jail since 30.09.2005 after conviction by the Trial Court, and as such undergone imprisonment for about 6 years 9 months. Prior to that he was arrested on 12.12.2002 during investigation and was remanded to judicial custody.
Consequently, on conviction of the appellant under second part of Section 304 IPC, the period of sentence is reduced to the period of imprisonment the appellant has already undergone. Accordingly, the appellant is directed to be set free forthwith unless he is wanted in any other case.
JUDGE THE CHIEF JUSTICE
FR/NFR
Opendro(rt)