Gauhati High Court
The State Of Assam vs Monindra Suklabaidya & 2 Ors on 27 August, 2013
Author: A.K.Goel
Bench: A.K.Goel
IN THE GAUHATI HIGH COURT
(High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh )
Criminal Appeal No.51 of 2010
State of Assam
.......Appellant
- Versus-
1. Shri Monindra Suklabaidya
S/o Late Mahendra The Suklabaidya
2. Shri Chandan Suklabaidya
S/o Shri Monindra Suklabaidya
3. Shri Rana Suklabaidya
S/o Shri Monindra Suklabaidya
All are residents of Dholai Police Station
District-Cachar, Silchar, Assam
......Respondents
BEFORE HON'BLE MR.JUSTICE A.K.GOEL, CHIEF JUSTICE AND HON'BLE MR JUSTICE B D AGARWAL For the Appellant ... Mr. Z Kamar, Public Prosecutor, Assam.
For the Respondent ... Mr. SP Choudhury, Advocate
Date of Hearing ... 21.08.2013
Date of judgment ... 27.08.2013
Crl. Appeal No. 51 of 2010 Page 1 of 19
JUDGMENT AND ORDER (CAV)
( B.D.Agarwal, J)
This appeal under Section 378 of the Code of Criminal Procedure, 1973 is at the instance of the State, challenging the legality and correctness of the judgment and order dated 11.8.2009, passed by the learned Additional Sessions Judge, Cachar, Silchar in Sessions Case No.76 of 2004, whereby the learned trial judge has acquitted all the three accused persons from the offence under Section 304 r/w Section 34 of the Indian Penal Code, 1860.
2. We have heard Sri Z Kamar, learned Public Prosecutor for the State and Sri SP Choudhury for the respondents. We have also gone through the impugned judgment as well as the prosecution evidence, proffered in the trial court. We have also taken note of the statements made by the accused persons u/s 313 Cr.P.C.
3. The gist of the prosecution case is that both the deceased and the accused persons had paddy fields at the place of occurrence with common boundary. In other words, paddy fields of both the parties were contiguous to each other. On 23.7.2002 at about 8.30 in the morning the deceased and his son Karuna were draining out excessive water from their plot of land and the water was being Crl. Appeal No. 51 of 2010 Page 2 of 19 released in the paddy field belonging to the accused Manindra Suklabaidya. Since this act of the son of the deceased was damaging the paddy cultivation of the accused an altercation took place initially between the accused Manindra and the son of the deceased, Karuna. Immediately the deceased also intervened in the altercation and he was assaulted with a spade.
4. The first FIR was lodged by the deceased himself on the date of the incident itself, naming all the three respondents as the accused persons. This FIR was registered as Dholai PS Case No.134 of 2002 U/Ss 447/326/34 IPC and after about seven weeks, precisely on 18.9.2002, the injured succumbed to the injuries at Silchar Medical College. On the death of the injured his brother (PW-1) lodged another FIR. On the basis of this FIR Section 302 IPC was added with the permission of the concerned CJM. Since a charge sheet on the basis of the original FIR was already submitted earlier it necessitated submission of a supplementary charge sheet U/Ss 447/324/323/302/34 IPC.
5. Both the charge sheets were finally clubbed together and the accused persons were tried for committing an offence u/s 302/34 IPC. After full length trial all the three accused persons have been acquitted by the impugned judgment.
Crl. Appeal No. 51 of 2010 Page 3 of 19
6. The learned P.P. submitted that for the same incident accused Manindra Suklabaidya had also lodged a counter case being Dholai PS case No. 133 of 2002 U/s 147/149/447/323 IPC and this being the admitted position the learned Sessions Judge ought not to have acquitted the accused persons out rightly. The learned P.P. also argued that PW-5 was present at the scene being the son of the deceased and his ocular testimony has also been discarded without cogent reasons. According to the learned counsel in addition to the ocular testimony there was also evidence of dying declaration made by the deceased himself before the I.O. on the date of the incident itself, albeit, in the form of giving his statement u/s 161 Cr.P.C. This statement has been brought on record vide Exhibit-9. Not only that the deceased had also named all the accused persons as the offenders before PW-1 at the place of occurrence itself. The learned P.P. also cited the Judgment of Hon'ble Supreme Court rendered in the case of Bhagwan Das-vs- SoUP; (2013 Cri.LJ 512) to contend that if a victim dies after giving his statement u/s 161 Cr.P.C. it can be treated as a dying declaration. On these premises the learned Public Prosecutor urged that the judgment of acquittal should be set aside and the respondents should be convicted in accordance with law. Crl. Appeal No. 51 of 2010 Page 4 of 19
7. Per Contra, Sri Choudhury, learned counsel for the respondents virtually raised a preliminary objection about homicidal death of the deceased. According to the learned defense counsel no credible evidence was placed in the trial court to hold that the death of Anil Suklabaidya was a homicidal one. Referring to the testimony of PW-6 the learned counsel submitted that the injuries sustained by the deceased were simple in nature and, as such, the death of the injured nearly after two months cannot be linked with the injuries, allegedly inflicted at the place of occurrence. In fact similar suggestions were also given to the prosecution witnesses during their cross-examination. The learned counsel for the respondents also submitted that the trial court has rightly disbelieved PW-5 as an eye- witness to the incident. The learned defense counsel also referred to the judgment of the Hon'ble Supreme Court rendered in the case of Mathai Methews -vs-State of Maharashtra reported in (1970) 3 SCC 772 to contend that a judgment of acquittal can only be interfered with if there is total perversity.
8. At the outset we would like to examine the powers of High Court to alter a judgment of acquittal into a judgment of conviction. In the case of Kallu -vs- State of Madhya Pradesh: (2006 CrLJ 799), the Apex Court has culled-out the legal principles for Crl. Appeal No. 51 of 2010 Page 5 of 19 upsetting an order of acquittal. The aforesaid authority has been approved in the case of Chandrappa -vs- the State of Karnataka; 2007(4) SCC 415. The guidelines are as under:
"29. Recently, in Kallu v. State of M.P. MANU/SC/0271/2006: 2006 Crl. L.J.799, this Court stated, "While deciding an appeal against the acquittal, the power of the Appellate Court is not less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellant court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court" (Emphasis supplied) "30. From the above decision, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on question of fact and of law;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are Crl. Appeal No. 51 of 2010 Page 6 of 19 not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court in interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
9. In view of the aforesaid authorities it is clear that the appellate court can re-appreciate the evidence and there is no fetter upon the High Court to reach to a different conclusion from what has been taken by the trial court and record a judgment of conviction, provided the theory of two reasonable conclusions is ruled out. It is equally true that the High Court should be slow and circumspect to upset an order of acquittal since there is double presumption of innocence in favour of an accused after an order of acquittal. Keeping in mind these legal principles we would now proceed to examine the merit of this case.
Crl. Appeal No. 51 of 2010 Page 7 of 19
10. The question whether the death of Anil Suklavaidya was homicidal or natural should not detain us any longer in view of the medical opinion of the doctor. The Post-Mortem report 'has been proved by the prosecution under Exhibit-7 through PW-8. Though the learned Sessions Judge took an exception that autopsy doctor was not examined by the prosecution but the trial Court equally failed to notice that Exhibit-7 was introduced in evidence without any objection by the accused persons. Since the autopsy doctor was not available, the Post-Mortem report was brought into record through another doctor, who was acquainted with handwriting and signatures of the autopsy doctor. Under Section 294 CrPC, if a document is filed by the prosecution in the Court along with the charge sheet and if the genuineness of such document is not disputed the same can be read in evidence in any enquiry or trial. With the aid of this provision of law also, the Post Mortem Report has been rightly considered as evidence by the trial Court and there is no difficulty to consider the findings recorded by the autopsy doctor, though he was not personally examined in the Court. In this report, the autopsy doctor noted that he found one depressed comminuted fracture on frontal bone of size 6 cms x 1 cm and the death of the person was due to coma, resulting from the cranium cerebral injuries. The autopsy Crl. Appeal No. 51 of 2010 Page 8 of 19 doctor has given a firm opinion that the injury was ante-mortem and homicidal in nature, which might have been caused by heavy and hard substance. At the same time, PW-8 has ruled out in the cross- examination that the injury might have been caused by a sharp cutting weapon, like a split bamboo. In the present case, the deceased was hit by the blunt handle of a spade, which is in conformity with the autopsy findings.
11. PW-6 is another doctor, who had examined the deceased on the day of the incident itself and found one sharp cut injury on the middle part of the scalp and one abrasion on the chest. In this way, the fatal injury noted by PW-6 was also found during autopsy and there is no contradiction in this regard. It is true that PW-6 has recorded in his medico-legal report (Ext-4) that the injuries were simple in nature. However, this opinion was given on the basis of clinical examination of the deceased while attending him at the initial stage. Be that as it may, the fact remains that the sharp cut wound on the scalp became fatal after few weeks. The defence theory that the deceased died due to some other disease is totally out of context and no such opinion was extracted from the doctors. In view of the findings recorded in the Post-Mortem report we find no hesitation to Crl. Appeal No. 51 of 2010 Page 9 of 19 hold that the death of Anil Suklabaidya was definitely a homicidal one.
12. Now, the question is whether the culpable homicide amounted to murder and who committed this offence. For this purpose, we have to look at the oral evidence of the witnesses.
13. It is true that in the first FIR dated 23.07.2002, it was stated that the accused Manindra had picked up an altercation with the deceased and hit on his head with a spade. Thereafter, other accused persons came and accused Rana also assaulted him with a spear and accused Chandan assaulted the deceased with a fencing post. In this way, overt acts were attributed against all the three accused persons. But the doctor (PW-6) had noticed only two wounds on the body of the injured. Hence, the possibility of involvement of 3 (three) persons is ruled out.
14. In the second FIR dated 18.09.2002 also, the accused Manindra was named as the prime accused. There was no allegation of any overt act by the other two accused persons. PW-1 has also deposed that getting the information of the incident he went to the paddy field and found the deceased lying in injured condition and on being asked the deceased told him that all the three accused persons Crl. Appeal No. 51 of 2010 Page 10 of 19 had assaulted him with a spade and a lathi. I have already noted earlier that in the first FIR it was alleged that the deceased was assaulted with a spade and a spear and not with a lathi. Be that as it may, the deceased did not narrate in detail to PW-1 as to who assaulted with what weapon. However, PW-1 was reported by the deceased that an altercation had ensued regarding release of rain water from his paddy field. In the cross-examination, PW-1 was given a suggestion about the counter case filed by the accused Manindra. From the suggestions given in the cross-examination to PW-1 it appears that the fact of altercation and marpit in between the deceased and Manindra was not disputed but the presence of other two accused persons was disputed.
15. PW-2 had watched the altercation from a distance of about 250 cubits while he was ploughing his paddy field. PW-2 has also confirmed about the presence of the accused Manindra in his paddy field. Since PW-2 did not assert that he had witnessed the assault by the accused persons he was declared hostile. In the cross- examination, PW-1 has admitted about the altercation between the accused Manindra and the deceased Anil relating to release of water from the paddy field. However, PW-2 denied the prosecution suggestion that he had also seen the other accused persons in Crl. Appeal No. 51 of 2010 Page 11 of 19 assaulting the deceased. In this way, the testimony of PW-2 is corroborative so far as the complicity of accused Manindra is concerned but there is doubt about involvement of other persons.
16. The testimony of PWs-3 and 4 are basically hearsay and they have not spoken anything about the complicity of the respondents. However, PW-3 has also admitted the fact of altercation in between the deceased and the accused Manindra since both the persons had paddy fields contiguous to each other.
17. PW-5 is the son of the deceased. As per the Public Prosecutor, he is the prime witness to the incident. PW-5 has deposed that at the relevant time he was planting paddy at a distance of about 12 feet from his father. PW-5 has further asserted that noticing Manindra advancing towards his father with ill intention to assault him with a pointed bamboo he went near his father and by that time the accused Rana had already assaulted his father with a pointed bamboo over his head and thereafter the accused Manindra also assaulted his father over his head. If the testimony of PW-5 is to be accepted then there should have been two injuries on the head. However, PW-6 as well as the autopsy doctor found only one injury on the forehead. On this ground alone, it would not be safe to treat PW-5 as an eye-witness to the incident. Even otherwise, his presence Crl. Appeal No. 51 of 2010 Page 12 of 19 at the place of occurrence does not find place in the testimonies of PWs-1 and 2 nor in the FIR and also not in the initial statement given by the deceased before the Investigating Officer under Section 161 CrPC. PW-5 also cannot be accepted as an eye-witness to the incident since his statement was not recorded by the Investigating Officer till the filing of the second after about 7 (seven) weeks nor he was cited as a witness in the first charge sheet. It is difficult to believe that being an eye-witness to the incident the son of the deceased would not have appeared before the Investigating Officer to give his statement or vice-versa. Hence, we hold that the trial Court has rightly rejected the testimony of PW-5 as an eye-witness.
18. The next incriminating evidence against the accused Manindra is in the nature of dying declaration made by the deceased before the Investigating Officer. Ext-9 is the said statement. In this statement also it was stated that altercation had initially taken place between the accused Manindra with his son when the latter had cut the mud-boundary (ail) of the paddy field for releasing the rain water and then the accused Manindra had assaulted his son Karuna. The deceased also stated before the Investigating Officer that when he tried to resist the accused he was also assaulted by the blunt side of a spade. After giving this statement, the deceased also made a self Crl. Appeal No. 51 of 2010 Page 13 of 19 contradicting statement that the accused Manindra and Rana again assaulted him with lathis. PW-3 was noticing the altercation from a distance of only about 20 nals (aprox. 150 feet) and he was able to identify the deceased and the accused Manindra quite clearly. However, PW-3 is totally silent about the presence of other two accused persons. This is another ground to give benefit of doubt to the respondent Nos. 2 and 3.
19. Now, the legal issue involved in this appeal is whether the statement given by the deceased before the Investigating Officer under Section 161 CrPC can be treated as a dying declaration. The same issue was thoroughly examined by the Hon'ble Supreme Court in the case of Bhagwan (supra). In this cited case also, the victim's statement was recorded by the Investigating Officer and the victim died on the very next day without giving any time for obtaining his formal dying declaration in presence of any doctor and witnesses. Despite that, the Apex Court concurred with the view taken by the trial Court that the statement made by the deceased before the Investigating Officer can be treated as a dying declaration under Section 32 (1) of the Evidence Act. Their Lordships have held that the law empowers the prosecution to rely on such statement by treating Crl. Appeal No. 51 of 2010 Page 14 of 19 it as a dying declaration. Relevant observations of the Hon'ble Supreme Court are reproduced below for ready reference:
"20. Going by Section 32(1) Evidence Act it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death. Having regard to the extraordinary credence attached to such statement fall under Section 32 (1) of the Indian Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying declaration.
21. As far as the implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32 (1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such."
20. Earlier to that, in the case of Gentela V.Rao-vs-State of AP: (1996) 6 SCC 241 the Hon'ble Supreme Court also held that a Crl. Appeal No. 51 of 2010 Page 15 of 19 statement given to a Magistrate by a victim under expectation of death ceases to have evidentiary value U/s 32 of the Evidence Act if the maker thereof survives, such a statement can still be used for corroboration in a court U/s 157 of the Evidence Act. An identical situation also arose in the case of Gubbala Venuegopalaswamy-vs- State of AP: (2004)10 SCC 120. In this case also a witness did not survive after giving his statement before an Executive Magistrate. Even then his statement was held to have evidentiary value U/s 157 of the Evidence Act for the purpose of corroboration. However, in the case before us though the victim's statement was initially recorded U/s 161 CrPC but the same has taken the shape of a dying statement and it can be read in evidence both U/s 32(1) and Section 157 of the Evidence Act.
21. The above apart, in a catena of decisions it has also been held that there is no statutory prescription about the manner and method in which a dying declaration should be recorded. Without multiplying authorities in this regard, we are inclined to extract the guidelines laid down by the Apex Court in the case of Laxman -Vs- State of Maharashtra; (2002) 6 SCC 710, which are as under:
"............A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and Crl. Appeal No. 51 of 2010 Page 16 of 19 definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case...................".
22. In addition to the dying declaration of the deceased in the form of his statement under Section 161 CrPC and also the implication of the accused Manindra coming forth from the testimony of PW-1 we also find corroboration from other angles as well. In his statement under Section 313 CrPC, given by the accused Manindra, the fact of altercation/quarrel was not disputed. The said accused also declared about the counter case, which we have already noted earlier. In view of the counter case, there can be no argument that the deceased must have been assaulted by any person other than the accused Manindra. Besides this, PW-1 was given a suggestion in the cross-examination that the deceased had destroyed the paddy field of the accused and for that purpose a counter case was lodged. In this way, the accused did not sustain any grievous injury to take a view that he had assaulted the deceased in exercise of his right to private defence. However, the fact remains that the offence was Crl. Appeal No. 51 of 2010 Page 17 of 19 committed in the midst of quarrel and under heat of passion and the accused also did not take any undue advantage of the situation by way of giving repeated assaults on the head. As per the evidence of the witnesses and the autopsy findings the deceased was given a single blow upon his head and that too from the blunt side of a spade. Hence, we hold that Exception 4 to Section 300 IPC is attracted and the offence of culpable homicide did not amount to murder.
23. In the result, the appeal stands partly allowed. We convict the respondent No. 1, Manindra Suklabaidya under Section 304 Part- II of the Indian Penal Code, 1860. Having regard to the fact that the incident took place more than 10 (ten) years ago and also the fact that the aforesaid accused/respondent is more than 70-years-old by now we award the accused token sentence of 1 (one) year's RI. It is made clear that the period of detention already undergone by the said accused during investigation and trial shall be set-off under Section 428 of the Code of Criminal Procedure, 1973. However, we do not propose to impose fine upon the said accused. At the same time, the acquittal of the respondent Nos. 2 and 3 is hereby maintained, by way of giving benefit of doubt to them.
24. Section 357-A of the Code of Criminal Procedure, 1973 imposes an obligation upon the State Government to pay Crl. Appeal No. 51 of 2010 Page 18 of 19 compensation to the victim's family. Accordingly, as an interim compensation we award an amount of Rs.1,00000/- ( One Lac) to the victim's family.
25. The Government of Assam is directed to pay compensation amount of Rs. 1,00,000/- (Rupees One Lac) only to the family members of the victim. The Government shall deposit the compensation amount in the Office of the learned Sessions Judge, Cachar, Silchar, within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the family members of the victim on proper identification and after obtaining proper receipt.
JUDGE CHIEF JUSTICE
Nivedita/dtg
Crl. Appeal No. 51 of 2010 Page 19 of 19