IN THE GAUHATI HIGH COURT (High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh ) Crl.Appeal No.101 of 2009 Sri Ratia Gowala S/O Sri Kishan Gowala R/O Nimana Garh T.E. P.S. Mathurapur, Dist.-Sivasagar, Assam..Appellant -Versus- The State of Assam Respondent BEFORE HON BLE MR.JUSTICE A.K.GOEL, CHIEF JUSTICE AND HON BLE MR JUSTICE B D AGARWAL For the Appellant For the Respondent Mr. G Choudhury, Mr. P Borah, Advocates Mr. Z Kamar, Public Prosecutor Date of Hearing 19.08.2013 Date of judgment 21.08.2013 JUDGMENT AND ORDER (ORAL) ( B.D.Agarwal, J) The judgment dated 30.5.2009 passed by the learned Additional Sessions Judge, Sivasagar in Sessions Case No.41 of 2008 is under challenge in this appeal. By this impugned Judgment the appellant has Crl.Appeal NO.101 of 2009 Page 1 of 7
been convicted under Section 302 of the Indian Penal Code and he has been sentenced to undergo Imprisonment for Life and also to pay fine of Rs.3000/- with default stipulation of imprisonment for another 4(four) months. 2. Heard Mr. G Choudury, learned counsel for the appellant and Mr. Z Kamar, learned Public Prosecutor for the State. We have also gone through the impugned judgment and the prosecution evidence proffered in the trial court. The defense case was that the accused assaulted the deceased with a bamboo stick as the deceased was attempting to assault his mother. In his statement under Section 313 of the Cr.P.C. the accused/appellant has admitted repeatedly about assaulting the deceased with a bamboo lathi. Hence, no evidence in defense was given. 3. The gist of the prosecution case is that both the deceased and the accused were immediate neighbors. In the night of 31.10.2007 an altercation took place in between the mother of the appellant and the deceased whereupon the appellant appeared at the scene and dealt lathi blows at random. Two lathi blows were given on the head and as a result of these blows the deceased died after two days. 4. FIR was lodged by the brother of the deceased on 2.11.2007. On the basis of this FIR investigation was carried out and after the Crl.Appeal NO.101 of 2009 Page 2 of 7
charge sheet the appellant has been convicted for the offence of murder. 5. Altogether 9 witnesses were examined by the prosecution. PWs-1 and 5 are the brothers of the deceased; PW-2 was working as a nurse in the garden hospital ; PW-3 is the VDP Secretary, PW-4 is the Judicial Magistrate, who had recorded the confessional statement of the accused; PW-6 is the autopsy doctor; PW-7 is the Gaonburah; PW-8 is the mother of the accused and PW-9 is the Investigating Officer. 6. The mother of the accused/appellant herself has admitted about the complicity of her son in the offence. However, she has deposed that her son/accused dealt lathi blows upon the deceased since the deceased had come to their quarter giving a life threat to her, brandishing a dao. 7. PWs- 1, 2 and 3 had the occasion to interact with the deceased personally. On being enquired the deceased himself told them that he was assaulted by the appellant, Ratia. PW-1 has further elaborated the dying declaration of the deceased by deposing that according to the deceased a quarrel and fight had taken place with the appellant. PW-2 has also admitted in chief-examination that on being enquired the accused told her that he had beaten the deceased Sukra as the later was creating nuisance after taking liquor. This witness is also the Crl.Appeal NO.101 of 2009 Page 3 of 7
immediate neighbour of the deceased. PW-3 has also spoken about the quarrel in between the appellant and the deceased, preceding the physical assault upon the deceased. 8. The deposition of PWs-5 and 7 are not very relevant inasmuch as they heard about the incident from other witnesses. However, the testimony of PWs-1, 2 and 3 could not be impeached to any extent regarding the complicity of the appellant in the offence. 9. In addition to the aforesaid oral evidence of the brothers of the deceased and the co-villagers, we also notice that the accused had given confessional statement before a Judicial Magistrate. Though the learned Additional Sessions Judge has rejected the confessional statement on the ground that since the accused was in police custody there is every possibility of putting pressure for making confessional statement. Besides this, in the opinion of the trial judge statutory warnings were also not given to the accused. However, the Judicial Magistrate (PW-4) has deposed that the accused was produced before her on 4.11.2007 and the accused was sent to jail for reflection. According to the Judicial Magistrate confessional statement was recorded only on the next day and the confessional statement has been proved as Exhibit-3. 10. After going through the confessional statement we find that the accused was thoroughly warned that he was not bound to give Crl.Appeal NO.101 of 2009 Page 4 of 7
confessional statement and he was also made known about the implications thereof and the Judicial Magistrate also put searching questions to ascertain that the accused was ready to confess his crime voluntarily. We have already noted earlier that while giving his statement u/s 313 Cr.P.C. the accused had repeatedly admitted about assaulting the deceased. Hence, in our opinion confessional statement can also be taken as corroborative evidence. 11. Taking into consideration the entire evidence on records we find no difficulty to hold that the offence was committed by the appellant and none else. 12. Now the question is whether the offence of culpable homicide amounted to murder. 12.1 According to the learned counsel for the appellant the offence of murder was committed in a heat of passion and after a brief altercation and quarrel when the deceased came to assault his mother. The learned counsel also submitted that the appellant had no intention to commit the offence of murder. 13. Autopsy doctor has opined that he found only two blunt injuries; one laceration on the left temporo parietal region and another bruise and hematoma at the same place. In the opinion of the doctor the victim died due to coma as a result of the injuries, which were ante-mortem in nature. We have noted earlier that the deceased Crl.Appeal NO.101 of 2009 Page 5 of 7
succumbed to the injuries after two days. The evidence also discloses that the deceased was not taken to any hospital immediately and because of this fact the deceased must have come under coma. Besides this, the witnesses have also spoken about the quarrel and altercation. At the same time only a blunt weapon like lathi was used in the crime. Besides this, according to PW-1 the deceased told him that he was assaulted at random on the head, chest, leg, back and other parts of the body. In our considered opinion had the appellant definite intention to commit the offence of murder he would not have assaulted the deceased on leg and back etc. and he would have inflicted lathi blows on the head only. We have also mentioned earlier that the victim survived for two days and it was not an instantaneous death. 14. For the foregoing reasons we hold that the offence was committed in the midst of quarrel without any premeditation. Hence, Exception- 4 to Sec-300 IPC is applicable. We further hold that neither the appellant had intention to kill the deceased nor had the intention or knowledge about inflicting fatal injury. 15. In view of the above the conviction of the appellant is converted from Section 302 IPC to 304 Pt-II of the IPC. Resultantly the substantive sentence is also reduced to rigorous imprisonment for 7(seven) years. However, the amount of fine and default sentence is maintained, as awarded by the trial Court. Crl.Appeal NO.101 of 2009 Page 6 of 7
16. Section 357-A of the Code of Criminal Procedure, 1973 imposes an obligation upon the State Government to pay compensation to the victim s family. Accordingly, as an interim compensation we hereby award an amount of Rs.1,00000/- ( One Lac) to the victim s family. 17. 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, Sivasagar 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. 18. With the aforesaid modifications in the conviction and sentences the appeal stands dismissed. JUDGE CHIEF JUSTICE Nivedita Crl.Appeal NO.101 of 2009 Page 7 of 7