IN THE GAUHATI HIGH COURT

Transcription

1 1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM, AND ARUNACHAL PRADESH) CRIMINAL APPEAL No.14/2014 Sri Ram Charan Bhuyan, Son of Sri Kumrua Bhuyan, Resident of Charanipani Tea Estate, P.S.- Titabor, District- Jorhat, Assam. Pin No Versus- State of Assam..Appellant..Respondent BEFORE HON BLE MR. JUSTICE UJJAL BHUYAN HON BLE MR. JUSTICE PARAN KUMAR PHUKAN Advocate for the Appellant Advocate for the Respondent : Mr. B. Prasad, Amicus Curiae : Ms. B. Bhuyan, Addl. P.P., Assam Date of Hearing : Date of Judgment : (P. K. Phukan,J) JUDGMENT AND ORDER (ORAL) The judgement of conviction and sentence dated , passed by the learned Sessions Judge, Jorhat, in Sessions Case No.18(JJ)/2008 convicting the accused appellant u/s 302 of the IPC and sentencing him to R.I. for life and to pay fine of Rs.10,000/- with a default clause is the subject matter of challenge in this appeal. 2. On , the informant Raju Bhuyan lodged an FIR with the O/C, Titabor Police Station alleging therein that on the same day at about 2.30 pm in his absence from his home, the accused appellant, who is his elder brother and was residing in a separate line of Charanipani Tea Estate killed his 4 year old son Babul Bhuyan by hacking him with a mechi dao while he was in his house, i.e., the house of the informant. On the basis of that FIR Titabor P.S. Case No.82/2007

2 2 was registered and on completion of investigation charge sheet was submitted against the accused appellant u/s 302 of the IPC. 3. In order to prove the charge, the prosecution examined 8 witnesses including the officials. The accused appellant took the plea of total denial in his defence statement recorded u/s 313 of the CrPC, however, he declined to adduce defence evidence. 4. We have heard Mr. B. Prasad, learned Amicus Curiae appearing for the appellant and Ms. B. Bhuyan, learned Addl. PP, Assam. 5. There is no dispute regarding the death of the deceased due to the injuries sustained by him. Post mortem on the dead body was held on in the Jorhat Civil Hospital by PW 5, Dr. Kumud Nath who at the relevant time was posted as Sub- Divisional Medical and Health Officer. On examination of the dead body he found the following injuries:-- WOUNDS-POSITION AND CHARACTER One wound extending from mid-chest upto supra putic region. Wound edge- Sharp, covered with clotted blood. Intestine and stomach lying over the wound outside. PERITONEUM-Lacerated covered with clotted blood. All the other organs are healthy. MORE DETAILED DESCRIPTION OF INJURY OR DISEASE One incised wound over the front side of the body extending from xiphisternum to the suprapubic region exposing the visceras. Injuries are antemortem. 6. The doctor opined that the death was caused due to syncope as a result of the injuries sustained by the deceased and the injuries were caused by sharp cutting weapon and he proved the post mortem report Exbt. 6. The doctor was not even cross examined. The inquest on the dead body was done by PW 7 Sri Susanta Kr. Dutta, who was posted as Executive Magistrate at Titabor at the relevant time. On examination of the dead body he found cut injuries on the stomach of the deceased and he also noticed the internal parts coming out from the stomach. From the evidence of doctor coupled with the evidence of the Executive Magistrate and the evidence of the other witnesses there is no room for doubt that the deceased died due to the injuries sustained by him which was caused by sharp weapon.

3 3 7. Now the pertinent question is who caused the injuries to the deceased which resulted his death. There is no direct evidence to connect the accused with the commission of the crime, in the sense that, none of the witnesses examined by the prosecution saw the accused causing the death of his son. 8. Prosecution is mainly relying on the circumstantial evidence appearing against the accused in this case. It is a well settled legal proposition that, in case of circumstantial evidence, there must be a chain of evidence which would lead to a conclusion that, the accused was the only person who could have committed the offence and none else. In the instant case prosecution is relying on the following circumstances:-- 1) The accused and the deceased were found in a closed room which was bolted from inside. 2) The weapon of assault was handed over to police by the accused appellant himself. 3) Refusal of the accused to open the door and it was forced open by police and 4) The recovery of the dead body in the room and the presence of the accused at that moment. 9. It is in the evidence of PW 1, Raju Bhuyan, that on the day of the occurrence he was not at home and at about 3 pm when he came back to his house from his place of work he was informed by the son and daughter of the accused appellant, and his mother-in-law that the accused appellant had caused the death of his son by cutting with a dao. It is also in his evidence that at that time the accused appellant was inside his house by bolting the door from inside and even though he called the accused appellant and asked him to open the door, he refused. He immediately informed about the incident to the Manager of the Tea Estate and on getting the information, the Manager informed police. It is also in his evidence that police after arrival forced open the door and found the accused and the deceased in the room. Police took photographs, seized some blood stained cotton and blood stained soil from near the dead body vide Exbt.1 seizure and one blood stained T- shirt was also recovered and seized along with

4 4 the weapon of offence dao vide Exbt.2 seizure in presence of the Secretary of the Tea Estate, namely, Jugal Garh, PW 6. According to PW 1, he lodged the written FIR Exbt.3, before police which was scribed by one Prakash Sahu. The inquest was also held on the dead body in his presence and he also put his signature in the inquest report Exbt.5. The testimony of PW 1 is also corroborated by his statement u/s 164 of the CrPC. 10. His evidence reveals that the accused appellant was residing in a separate house which was situated at a distance of 200 yards from his house. According to him on that day the deceased son of the accused appellant was in his house and when he left for his work place he was still in the house. 11. Close on the heels of PW 1, the prosecution witnesses PW 2 Smti Junmoni Bhuyan, wife of the accused appellant, PW 3 Sri, Ananda Bhuyan, younger brother of the accused appellant, PW 4 Sanjoy Bhuyan also deposed that on their arrival on getting the information that the accused had killed his son they found the accused inside the house of PW 1 and they deposed that the accused was inside the room with the deceased with injuries and police forced the door open. 12. PW 6 Jugal Nath, who was the Secretary of the labour union at the relevant time, having come to know about the incident from PW 1 immediately came to his house and by peeping through the window saw the accused holding a dao and he also noticed the dead body of the child lying on the ground. Police forced open the door and on being asked by police he confessed his guilt. Police seized the dao and blood stained clothes in his presence. 13. On a careful scrutiny of the entire evidence on record there is no doubt that the accused appellant was seen inside the room with his deceased son with injuries on his stomach and the door of the room was bolted from inside. The dao was also found near the dead body of the deceased. The accused appellant could not offer any explanation for his presence near the dead body of his own son. From the trend cross examination the defence plea would be that the accused appellant was suffering from some mental disorder and he had stated in his statement recorded u/s 313 of the CrPC that he used to visit the hospital frequently at the relevant time but there is no medical evidence to support the plea of insanity taken by the accused.

5 5 14. Section 84 of the IPC lays down the legal test of responsibility in cases of alleged unsoundness of mind. The Section reads thus: Act of a person of unsound mind- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. 15. The burden of proving the existence of circumstance bringing the case within the purview of section 84 lies upon the accused u/s 105 of the Indian Evidence Act. 16. Under Section 84 of the IPC the accused is protected not only when on account of unsoundness of mind, he was incapable of knowing the nature of the act, but also when he did not know either that the act was wrong or that it was contrary to law although he might know the nature of the act itself. 17. In Hari Singh Gond vs State of M.P. AIR 2009 SC 31 the Apex Court held that. the standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right, or w rong. The mere fact that an accused is conceited, odd irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions and will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of this section. 18. Keeping in view the above principles of law laid down by the Apex Court what we have found in the instant case is that the accused appellant apart from taking the plea that he had visited the hospital several times during that period failed to produce any evidence to prove his plea of insanity. The nature of the mental insanity has not been disclosed by any of the witnesses apart from the fact that he was short tempered and was unemployed during that period which by itself is not sufficient to hold that he had committed the crime due to unsoundness of mind.

6 6 19. Coming back to the evidence on record it clearly emerges that the accused appellant was found inside the room with the dead body of his deceased son with fatal injuries on his stomach. The door was bolted from inside and inspite of request he refused to open the door and it had to be forced open by police and he was seen near the dead body of his deceased son with the weapon of offence near the dead body. He could not give any explanation for his presence in the room with the dead body. The death of the deceased was undoubtedly homicidal in nature. Even in his defence statement u/s 313 CrPC, the accused could not offer any explanation when the incriminating circumstance was explained to him. 20. Under Section 106 of the Evidence Act when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him. In the present case the accused could not give any explanation for his presence near the dead body inside the closed room and this circumstance itself is sufficient enough to hold him guilty for committing the murder of his 4 year old son. Although he had taken the plea of insanity but he could not discharge the burden of proving the same. There is no evidence that he was behaving abnormally and he had any previous history of mental illness. Defence totally failed to prove legal insanity as contemplated u/s 84 of the IPC. 21. In view of above discussion we do not find any infirmity in the judgment passed by the learned Sessions Judge while convicting the accused appellant u/s 302 of the IPC. Consequently, the judgment is affirmed. The appeal is dismissed. 22. Send down the LCR forthwith. 23. We deeply appreciate the assistance rendered by Mr. B. Prasad, learned Amicus Curiae. We direct the State Legal Services Authority to pay an amount of Rs.7,500/- (Seven Thousand Five Hundred) to him as his remuneration. JUDGE JUDGE Rupam