Gauhati High Court
Niranjan Heera And Anr vs The State Of Assam on 14 June, 2022
Author: Suman Shyam
Bench: Suman Shyam, Malasri Nandi
Page No.# 1/12
GAHC010044472017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/83/2017
NIRANJAN HEERA and ANR.
VERSUS
THE STATE OF ASSAM
Guwahati
For the Appellant : Mr. N.N. B. Choudhury, Adv.
For the Respondents: Ms. S. Jahan. APP, Assam
THE HON'BLE MR. JUSTICE SUMAN SHYAM THE HON'BLE MRS. JUSTICE MALASRI NANDI Date of hearing : 23/05/2022.
Date of judgement : 14/06/2022.
JUDGEMENT AND ORDER (CAV)
Suman Shyam, J
1. Heard Mr. N.N.B. Choudhury, learned counsel appearing for the appellants. We have also heard Ms. S. Jahan, learned APP, Assam, who has appeared on behalf of the State of Assam. Ms. R.R. Kakati, learned Legal Aid Counsel is present on behalf of the informant.
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2. This appeal arises out of the judgement dated 25/04/2017 passed by the learned Sessions Judge, Morigaon, in connection with Sessions Case No. 07/2013 whereby, the learned trial Court has convicted both the appellants for committing offences punishable under Sections 448/302/34 of the Indian Penal Code (IPC) and sentenced each of them to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/- each for committing the offence under Sections 448/34 IPC. The learned Court below has also sentenced both the appellants to suffer rigorous imprisonment for life and also to pay fine of Rs. 30,000/- each with default stipulation for committing the offence under Sections 302/34 of the IPC. Both the sentences were to run concurrently.
3. The facts of the case, in a nutshell, are that on 20/10/2012, Smt. Bhagya Hira i.e. the wife of the deceased Darshan Hira had lodged an ejahar with the Incharge of the Bari- bazar Police Patrolling Post informing that on the previous night, at around 10-15 p.m., her brother Bhupen Hira had gone to the house of her uncle to have tobacco but the family members of her uncle had driven away Bhupen Hira by scolding him, whereupon her brother had returned home. After a while, the accused persons, named in the ejahar, had illegally entered into her house with spears in their hands and started scolding her brother again. At that time, her husband and she took the accused persons outside their house, towards the road, but both the accused persons had stabbed her husband on the chest with the spear and spike in their hands, as a result of which, her husband fell down on the ground and died instantly. In the ejahar dated 20/10/2012, both the appellants have been named as the accused persons.
4. On receipt of the ejahar dated 20/10/2012, a GD entry being Bari-bazar Police PP GDE No. 343 dated 20/10/2012 was made and the ejahar was forwarded to the Officer-in- Charge, Mikirbheta Police Station for registering a case. Based on the ejahar dated 20/10/2012, Mikirbheta PS Case No. 209/2012 was registered under sections 448/302/34 of the IPC and the matter was taken up for investigation.
5. During the course of investigation, the Investigating Officer (IO) had visited the place of occurrence, conducted inquest over the dead body and also sent the body for conducting post-mortem examination at the Morigaon Civil Hospital. On completion of investigation, the IO had submitted charge sheet against both the appellants. Based on the charge sheet submitted by the IO, the learned trial Court had framed charge under sections Page No.# 3/12 448/302/34 of the IPC against both the appellants and the same were read over and explained to them, to which, the appellants had pleaded not guilty and claimed to be tried. Accordingly, the matter went up for trial.
6. The prosecution had projected the informant (PW-1) and her brother PW-3 as the eye witnesses to the occurrence. Apart from the aforementioned two witnesses, the prosecution had also examined as many as 8(eight) other witnesses so as to bring home the charge. The case of the appellants/accused persons while recording their statements u/s 313 of Cr.P.C. was one of total denial and the defence side also did not lead any evidence. Based on the materials available on record, the learned trial Court has held that the charge brought against both the appellants could be established by the prosecution beyond reasonable doubt and accordingly, both the appellants were convicted by the learned trial Court and sentenced as aforesaid.
7. By referring to the impugned judgement, Mr. Choudhury, learned counsel for the appellants has argued that the charge brought against his clients could not be established beyond reasonable doubt. According to Mr. Choudhury, the GD entry No. 333 dated 19/10/2012 (Ext.-5) was not proved by the prosecution and the witnesses PWs 1 and 3 also could not clearly indicate as to which of the two appellants had inflicted the fatal blow on the deceased. Referring to the post-mortem report (Ext-2) which mentions of a single penetrating injury on the dead body, Mr. Choudhury has argued that the ocular evidence of PWs 1 and 5, who had mentioned about two injuries on the body of the victim, does not support the medical evidence and, therefore, it is doubtful as to whether the PW-1 was at all seen the occurrence. Laying emphasis on the contradiction between the ocular evidence of PWs 1 and 3 as well as the post-mortem report (Ext-2), Mr. Choudhury has further argued that there has been no proper seizure of the weapon nor has the IO taken any step to connect the weapon with the accused persons. It is also the submission of Mr. Choudhury that the evidence adduced by the PW-10 has not been correctly put to the accused persons while recording their statements under section 313 Cr.P.C., thereby, causing serious prejudice to the interest of the appellants. On the above ground, the learned counsel has sought acquittal of the appellants by contending that the charge brought against them has not been proved by the prosecution beyond doubt.
8. By way of an alternative argument, Mr. N.N.B. Choudhury, learned counsel for the Page No.# 4/12 appellants has argued that from the testimonies of PWs-1, 3 and 5, it has clearly come out that the brother of the informant Bhupen Hira (PW-3) had gone asking for tobacco from the wife of the appellant Niranjan Hira just before the incident and it has been deposed by the PW-9 Mamata Hira that Bhupen Hira tried to enter the bed room of her daughter-in-law with the intent to molest her. It appears that it is such conduct of the PW-3, which had enraged the appellants, which had ultimately led to the incident. Mr. Choudhury submits that the target was the PW-3 but when the deceased and the informant tried to protect the PW-3, it was at that moment, out of anger and having lost the sense of self control, that the accused persons had assaulted the deceased although, there was no pre-meditation on their part to assault the victim. Mr. Choudhury has, therefore, submits that viewed from that angle also, this case would come within the folds of exception I & IV of Section 300 of the IPC meriting a lesser punishment on the appellants.
9. Mr. Choudhury has also argued that the prosecution has failed to establish the common intent on the part of the appellants to assault the victim and since there is no material to indicate as to which of the two appellants had actually assaulted the victim, both of them ought not to have been convicted for murder with the assistance of section 34 of the IPC since there was only one injury found in the dead body. In support of his above arguments, Mr. Choudhury has placed reliance on the following decisions of the Hon'ble Supreme Court:-
(i) Raghubir Singh and others Vs. State of Punjab reported in (1996) 9 SSC 233.
(ii)Harjinder Singh @ Bhola Vs. State of Punjab reported in (2004) 11 SCC 253.
(iii) Central Bureau of Investigation and another Vs. Mohd. Parvez Abdul Kayum and others reported in (2019) 12 SCC 1.
10. Ms. S. Jahan, learned APP, Assam, on the other hand, has argued that from the evidence of PW-1, it is established beyond doubt that she was not only present in the house at the time of the incident but had also seen the occurrence. PW-1 was there with her husband when both the appellants had entered the house of the victim and later, assaulted him. If the evidence of PW-1 is relied upon, then the same would lead to the irresistible Page No.# 5/12 conclusion that it was none other than the appellants who had fatally assaulted the victim leading to his death. She submits that the original target was the PW-3 but both the appellants had subsequently not only threatened the informant and her family members including the victim but had also assaulted the victim with sharp weapon so as to cause death to him. Such common intent on the part of both the appellants developed on the spot when the victim had refused to give up PW-3 on being demanded by the appellants. The above facts, emerging from the evidence on record makes it is clear that common intent on the part of both the appellants to assault the victim was not only present but the same also developed instantly.
11. In so far as the alternative arguments made by Mr. Choudury is concerned, Ms. Jahan submits that there is evidence to show that the conduct of the PW-3 had enraged the appellant no. 1 Niranjan Heera as well as his brother Jitra Heera. The fact that the incident happened in a heat of passion, the appellants having lost their sense of self control, therefore, cannot be ruled out in this case. In support of her above arguments, Ms. Jahan has relied upon the decision in the case of Krishnamurthy and others Vs. State of Karnataka reported in 2022 (2) Crimes 101 (SC) and in State of Madhya Pradesh Vs. Ramji Lal Sharma and others reported in AIR 2022 SC 1366.
12. We have considered the submissions advanced by learned counsel for both the sides and have carefully gone through the materials available on record.
13. From the evidence on record, we find that Smt. Bhagya Hira i.e. the wife of the deceased is the informant in this case. She was examined by the prosecution as PW-1. In her deposition, PW-1 has clearly stated that the occurrence took place at about 8-30 to 9 p.m. in her courtyard. Just prior to the occurrence, her husband was taking meal inside the house along with her brother Bhupen Hira. Suddenly, Nirajan Hira armed with a 'dao' and one spear entered her house and attempted to assault Bhupen Hira (PW-3). She intervened in the matter. At that moment, appellant Jitra Hira also entered the house with a spear and caught Bhupen by his clothes. At that, her husband had caught hold of both the accused/appellants Niranjan Heera and Jitra Hira and took them outside the house leaving Bhupen inside the house. Then both the accused/appellants demanded that Bhupen be brought out of the house but her husband tried to prevent them. The accused persons were not discouraged by that and instead they had threatened her husband (deceased) saying that if Bhupen was not Page No.# 6/12 brought out of the house, then they would assault all the members of her family. She tried to intervene in the matter but both the accused persons inflicted spear blow on her deceased husband, as a result of which, he had sustained two injuries on his body. PW-1 further deposed that her husband died after a few minutes. Nearby persons had gathered and they took her husband inside the house. Police was informed and after sometime, they arrived at the spot. Dead body was taken to the Police Station. She then filed ejahar Ext-1.
14. During her cross examination, PW-1 has stated that Jitra Hira worked under her husband as a Helper. On the day of the incident, her husband Darshan Hira and Jitra Hira came together from their work place and Jitra had heard the conversation between her and Bhupen. At that time, Jitra had asked as to what Bhupen was talking about and then he came back to the house and returned with Niranjan, who is the brother of Jitra. According to PW-1, accused Niranjan was angry and was shouting as to why Bhupen had done such act with his wife. Niranjan had demanded that Bhupen be brought out of the house. She and her husband Darshan Hira (deceased) had pushed back both the accused persons to their courtyard. Other villagers gathered when she had raised hue and cry after her husband was injured. At that time, about 20/25 persons had gathered in that place.
15. Dr. Abdul Jalil was the senior Medical and Health Officer on duty at the Morigaon Civil Hospital on 20/12/2012 when the dead body was brought there for post-mortem examination. He was examined as PW-2. The Doctor (PW-2) has proved the post-mortem report Ext. 2 by identifying his signature therein. PW-2 has deposed that the post-mortem examination was conducted on the dead body of the deceased Darshan Hira in connection with Bari-bazar PP BD entry No. 333 dated 19/10/2012 on being identified by UBC 254 Atul Chandra Boniya. According to the post-mortem report, one penetrating wound over right chest wall, 4 cm medial to the right nipple which is round and about 3 inch deep was found. The doctor has opined that death was due to shock and haemorrhage following deep penetrating injury over the chest and due to respiratory failure as a result of right lung rupture.
16. Sri Bhupen Hira, who is in the centre of the entire incident, was examined as PW-3. This witness has deposed that on the date of occurrence, at about 7 p.m., he had gone to the house of Niranjan Hira asking for tobacco, on which, wife of Niranjan Hira got annoyed and scolded him with filthy language. He returned at about 8 p.m. to his house and then Page No.# 7/12 proceeded to the house of the victim since his mother was in that house. On reaching the house of his brother-in-law, he had reported that accused Niranjan Hira has scolded him, which was heard by accused Jitra Hira. Thereafter, Jitra Hira went to his house and returned with his brother Niranjan Hira armed with dao, spear so as to assault him. Then his brother- in-law tried to intervene in the matter and took the accused/appellants out of the house. Then the accused/appellants had assaulted his brother-in-law with a spear on his chest and fled away. An 108 Ambulance was called immediately but before the arrival of the ambulance, his brother-in-law had succumbed to the injuries.
17. The testimony of this witness could not be shakened during his cross examination. The PW-3 was firm in his evidence that his sister (PW-1) and he were the eye witnesses to the occurrence. PW-3 has further stated that there was no quarrel between the deceased and the accused persons.
18. PW-4 Sri Dharmeswar Hira is a seizure witness. PW-4 has deposed that at the time of the incident, he was at his house. On the following morning, he came to know that the deceased Darshan Hira has been stabbed by Jitra Hira with a spear. At that time, he was the VDP Nayak. After the arrival of the Police, he was called to the house of Jitra along with VDP Secretary Purna Hira. Police had recovered one "prone spear" from accused Jitra Hira by means of which, he had inflicted injury on Darshan Hira. The spear was seized in his presence by Ext. 4 seizure list which contains his signature. PW-4 deposed that M. Ext. 1 is the spear. During his cross examination, PW-4 has stated that the mother of Jitra Hira had shown the Police where M. Ext. 1 was hidden inside a pond and it was recovered from the pool. According to PW-4, Jayanta Hira i.e. the son-in-law of Momata Hira took out the seized spear from the pond on being shown by Mamata Hira but she has denied any knowledge as to whether the spear was used in committing the crime.
19. Sri Jurman Hira is a neighbour of the deceased Darshan Hira and he was examined as PW-5. PW-5 has stated that on the day of the incident, at about 10 p.m., when he was in his house, he had heard hue and cry and came out. He saw deceased Darshan Hira was lying in the courtyard in an injured condition and his mother, wife and brother and brother's wife were present. He had seen two injuries on the body of Darshan Hira and blood was oozing out. Gobin Hira had called 108 Ambulance but it could not be found. Then they managed to take the injured to the hospital in a private vehicle but by then, he had died. Police was Page No.# 8/12 informed and after some time, the Police came and took away the dead body. When he reached the place of occurrence, Bhagya Hira (PW-1) was shouting that the accused persons had caused injuries to her husband Darshan Hira. In his cross examination, PW-5 has admitted that he did not see the occurrence. He further deposed that Niranjan Hira and Jitra Hira did not go there to kill Darshan Hira but they went there to assault Bhupen Hira, who is the brother-in-law of Darshan Hira. Bhupen had gone to the house of Niranjan asking for tobacco from his wife, as a result of which, Niranjan become angry. PW-5 has, however, confirmed that the incident took place in the courtyard of Darshan Hira.
20. PW-6 Sri Goleswar Hira did not have any personal knowledge about the incident and therefore, his testimony would not be of any significance in this case.
21. Sri Pradip Hira is another villager and he was examined as PW-7. This witness is a seizure witness who has confirmed that the spear, which was brought out from the water by the son-in-law of Harendra Hira, was seized vide Ext. 4, which contains his signature.
22. PW-8 Sri Jayanta Hira has deposed that he had married the daughter of Harendra Hira i.e. the sister of the accused persons. He had come to the house of his father-in-law 3-4 days after the occurrence. On that day, Police personnel came there and asked him to follow them into the pond. Police had also asked him to get down into the pond and bring out the spear. Accordingly, he went there and brought out the spear from the pond. M. Ext. 1 is the spear. PW-8 has stated that his thumb impression has been obtained by the Police in the seizure list for recovering the spear. According to PW-8, the mother of Jitra Hira had told that the spear, which was used in the incident, was thrown into the pond.
23. PW-9 Smt.Mamata Hira is the mother of the accused/appellant Jitra Hira. She has deposed that at around 10 p.m. on the night of the incident, she was cooking meal in the kitchen. At that time, Bhupen Hira (PW-3) i.e. the nephew of her husband had entered into the room of her daughter-in-law and tried to molest her. When Niranjan and her husband went to the house of Bhupen, he was assaulted. This witness was later declared as a hostile witness on the request of the prosecution. During her cross examination by the prosecution side PW-9 has stated that Minakshi is her daughter-in-law, who was married to Niranjan. On hearing Minakshi's scream, she went to her room. At that time, her daughter-in-law told her about the incident. Accused Hitra has chased Bhupen and reached the house of the deceased. Later, she came to know that Bhupen Hira and Darshan Hira had tried to assault Page No.# 9/12 her son and out of fear, he had returned back and, therefore, she did not know as to who killed Darshan Hira as it was a dark night.
24. PW-10 Sri Bhadram Bora was the In-charge of Borchola Police Out-post on 20/10/2012. He is the IO in this case. This witness has deposed that at about 11-50 p.m. he had received a phone call from one Purna Hira, VDP Secretary, Paghali Hira Gaon, informing him that Darshan Hira had been murdered by Niranjan Hira and Jitra Hira with a spear. He then registered a GD entry being GDE No. 333 dated 19/10/2012 and then proceeded to the place of occurrence. Before that, he had informed the Officer-in-Charge, Mikirbheta Police Station about the incident. Police team from Mikirbheta Police Station had also arrived. Ext. 5 is the copy of the GD entry. According to PW-10 since it was night hours, hence, inquest could not be done on that evening but on the following morning, inquest was done over the dead body and the same was brought to the Police Station. The accused persons fled away from the village. No attempt was made by him to arrest them. Informant Bhagya Hira had lodged the FIR which was forwarded to the Mikirbheta Police Station. Ext. 6 is the FIR. The IO has also deposed that he had examined some witnesses and searched for the accused persons but could not find them. He returned back to the Police Station and dispatched the dead body for post-mortem examination to the Morigaon Civil Hospital. On 02/11/2012, he received information that both the accused persons had surrendered before the Court. Then he sought custody of the accused persons, which was granted by the Court. The accused persons were brought to the Mikirbheta Police Station and their statements were recorded. When they were brought to the Mikirbheta Police Station, the accused persons told that they had informed their mother that the weapon of assault was thrown into the pond. Then the Police went to the village accompanied by the mother and on being shown by the mother of the accused, one Jayanta Hira had fished out the 'jathi' (spear) from the pond, which was seized vide seizure list Ext. 4. PW-10 has also stated that he has recorded the statement of Mamata Hira. In her statement, Mamata Hira has stated that her son Jitra had made a disclosure that the spear used in the incident was thrown into the pond and in her presence, Jayanta Hira had fished out the spear.
25. From a careful evaluation of the evidence available on record, we are of the opinion that PW-1 was present at the place of occurrence when the incident took place and she had also seen the occurrence. As such, the PW-1 is undoubtedly an eye witness to the Page No.# 10/12 occurrence. The evidence of PW-1 is found to be free from any contradiction/exaggeration and/or improvement and her evidence also finds due corroboration from the testimony of other witnesses, more particularly, from the testimony of the PWs-3 and 5. We also find from the evidence on record that the PW-3 was at the home of his sister when the two accused persons had come there armed with spear etc to assault him and he has also witnessed at- least a part of the incident, leading to death of his brother-in-law.
26. From the above, it can be seen that the prosecution case is primarily based on the testimonies of PWs 1 and 3, who are the eye witnesses to the occurrence. Since there is nothing on record to doubt the credibility of these witnesses and having regard to the bulk of evidence available on record, we are of the view that the prosecution has succeeded in proving beyond reasonable doubt that, on the night of the occurrence, it was none other than the appellants Niranjan Hira and Jitra Hira, who had fatally injured the deceased by means of sharp weapon leading to his death.
27. In so far as the discrepancy between the post-mortem report as well as the testimony of PWs 1 and 5, it is no doubt correct that while both the witnesses have mentioned about two injuries on the dead body, the post-mortem report mentions about a single injury in the chest, which has also been projected as the reason for causing death of the victim. Under normal circumstances, such discrepancy between the ocular evidence and the medical evidence may cause a serious dent on the prosecution case. But in the present case, since the eye witnesses have clearly identified that it was none other than the two appellants who had assaulted the victim with a sharp weapon and in view of the fact that the evidence on record clearly establishes the homicidal death of the victim, we are of the view that the some discrepancy, if any, on the number of injuries sustained on the dead body of the victim, would not have a material bearing in the outcome of this case.
28. Now coming to the alternative arguments advanced by Mr. Choudhury urging that this matter would come within exception I and IV of Section 300 of the IPC, it is to be noted herein that there is cogent evidence available on record to show that just before the incident, PW-3 had gone to the house of the appellant Niranjan Hira and asked for tobacco from his wife. At that point of time, something happened between PW-3 and the wife of Niranjan which had enraged the latter. As per the testimony of PW-9 i.e. the mother of Niranjan, PW-3 tried to molest her daughter-in-law i.e. Niranjan's wife by entering into the bed room. It Page No.# 11/12 appears that enraged by the conduct of PW-3 and as a measure of retribution, Jitra had come to the house of the deceased to raise a protest against PW-3 but he was also driven away by the PW-3. This had further enraged both the appellants and on this occasion, they returned back armed with lethal weapon like spear etc. targeting the PW-3. From the evidence available on record, it can be clearly seen that the appellants had returned back to the house of the deceased with the intent to assault the PW-3. It appears that there was no intent on the part of the appellants to cause bodily harm or injury upon any other member of the family of the deceased except the PW-3. However, when the deceased came in the way and tried to prevent the appellants from assaulting his brother-in-law i.e. Bhupen Hira (PW-3), it was at that time, both the appellants turned to the deceased and attacked him with the spear.
29. If the evidence adduced by the prosecution witnesses is taken on face value, even then, it is evident that soon before the occurrence, when the victim was trying to drive away the appellants with a view to protect his brother-in-law, some altercations took place between them. Since the root cause of the quarrel was a matter of sensitive nature, viz. the question of misdemeanor towards of a woman i.e. the wife of Niranjan Hira, it is possible that passion was running very high between the parties and when the quarrel between the two appellants and the deceased as well as his wife was going on in the courtyard of the house of the victim, the appellants, acting under grave and sudden provocation, in a heat of passion and having lost their sense of self control, had assaulted the victim leading to his death. We are, therefore, of the view that the instant case would come within the purview of Exceptions I and IV of Section 300 of the IPC.
30. From the nature of evidence brought on record, we, however, do not have any manner of doubt that both the appellants had shared a common intention to assault the victim and there was meeting of mind between them before assaulting the deceased with a sharp weapon. It is evident from the materials on record that the common intention on the part of the appellant was generated instantly and just before the occurrence when the deceased and his wife had tried to protect the PW-3. Therefore, in our view, the learned trial Court was correct in convicting both the appellants for committing the murder of the deceased with the assistance of section 34 of I.P.C.
31. In the result, the appeal succeeds in part. The conviction of the appellants under Page No.# 12/12 sections 302/34 of the IPC stands converted to one under section 304 Part-II/34 of IPC. Both the appellants are awarded punishment of rigorous imprisonment for 10(ten) years. The fine imposed upon the appellants would, however, remain unaltered.
32. The jail sentence already served by the appellants shall be set off from the sentence awarded by this Court.
The appeal stands partly allowed.
Send back the LCR.
JUDGE JUDGE Sukhamay Comparing Assistant