Arun Kr. Nath vs State of Assam

N.C. Jain, J.—The Appellant on being convicted u/s 302 of the Indian Penal Code and having been sentenced to undergo rigorous imprisonment for life in addition to a fine of Rs. 500/- has filed the present appeal.

The First Information Report (FIR) in the present case has been lodged by (me Ratul Chandra Nath, the cousin of the accused, on 23rd November 91 alleging therein that at about 2 p.m. someone killed Dhruba Nath, son of Hangsha Nath, by hacking him in the neck and in the eyes while he was sleeping. Hangsha Nath was described by the lodger of the FIR as his maternal uncle. It was stated in the FIR that the complainant was harvesting in the field where he learnt about the occurrence. The Appellant was stated to be earning his livelihood by running a cycle shop at Rupahi Chowk.

After the registration of the FIR, the mvestigating agency swung into action by visiting the place of occurrence where a dao, the weapon of offence, was recovered. The inquest report was prepared, other formalities were completed. The Appellant, according to the prosecution, surrendered before the police in the police station at 2.00 p.m. on 25th Nov. 91 and disclosed that it was he who committed the murder ofhis elderbrother. The confessional statement was recorded by the Judicial Magistrate, the P.W. 2.

In order to prove its case against the Appellant, the prosecution has, in all produced 6 witnesses. P.W. 1, Dr. N.K. Sarma has preferred the post-mortem examination. P.W. 2, Mr. K. Dahotia, is a Judicial Magistrate who has recorded the confessional statement of the accused Appellant. P.W. 3, Sri Dumuhu Ram Nath is the cousin of the accused Appellant and the deceased. P.W. 4, Sri Sachindra Nath Bhuyan, is the scribe of the FIR. P.W. 5, Smt Tarulata Devi, is the sister of the Appellant and the deceased. PW.6 is the Investigating Officer. The defence, in order to prove the plea alibi, has produced ShaSona Ram Bora, D.W. 1.

As has been noticed in the earlier part of the judgment, the Appellant was not named in the FIR and, therefore, the present case rests upon either circumstantial evidence or confessional statement of the Appellant which shall be presently discussed herein after.

P.W. 1, Dr. N.K. Sarma stated that he performed the post-mortem examination on the dead body of the deceased Dhruba Nath after proper identification etc. He found a big cut injury 30 cm x 13 cm over the face extending from the right eye to the left molar region. The wound was bisecting the right eye. Another cut injury was seen on the anterior aspect of the neck at the lower border of thyrod 12 cm x 10 cm. In the opinion of the doctor death was due to haemorrhage, shock and comma as a result of the injuries sustained. In cross-examination this witness stated that the injuries were caused by sharp cutting weapon and the impact of the blows was quite heavy. The doctor did not say in so many words that the injuries found on the person of the deceased were sufficient in the ordinary course of nature to cause death.

P.W. 2, Shri K. Dahotia, stated that on 26.11.91 the accused was produced before him as per orders of the Chief Judicial Magistrate for recording the confessional statement. He went on to state that on the production of the accused he explained all the implications of making confession to the accused and warned him that the confession might be used against him in the trial and gave him three hours time for reflection. After expiry of 3 hours he asked the accused whether he was willing to make the confession to which he replied in the affirmative. He recorded the confessional statement (Exhibit-2) and put his signatures thereupon which were Exhibits, 2, 2(1), 2(2), 2(3) and 2(4). The accused also put his signatures upon the confessional statement which were exhibits -2(5) and 2(6) in presence of the magistrate. In cross-examination he stated that during the period of reflection the accused was kept inside his Court in charge of his Court peon. He further stated that it was not mentioned in Exhibit-2 or in order sheet that during contemplation the accused was kept inside the Court room and in the chamber under the Court peon''s custody. The magistrate further stated in cross-examination that the accused was produced before him on 26.11.91 and the confession was recorded the same day. He admitted that although he did not specifically record the mental state of the accused at the time of recording his confession but he recorded all the reasons showing that the confession of the accused was voluntary.

P.W. 3, Sri Dumuhuram Nath, stated that the accused was his cousin and so was deceased. The accused and deceased were brothers. His house was situated at a distance of one furlong from the house of the accused. On the day of occurrence he was working in the field. He learnt that there was a quarrel in the house of the accused at about 4 p.m. and he found many people whom he asked as to what had happened and the people told him that someone had cut Dhruba to death. He immediately after hearing the news went and returned after the police came. At that time he saw Dhruba lying dead with cut injuries on the forehead and in the neck. He stated that he identified the dead body and that police held inquest and prepared inquest report, Exhibit-3. He stated that Exhibit 3(1) was his signature. He further stated that he found a blood stained dao in the house of the deceased and he handed over the same to the police which was seized, vide Exhibit-4 and Exhibit-4(1) was his signature. He did not know as to who killed Dhruba. In cross-examination he stated that there was a quarrel and large number of people raised hue and cry in the house of the deceased and the accused. He admitted in cross-examination that when he went to the house of the deceased he did not see accused Aran there and that a dao was produced by the father of the accused and at that time Arun, the accused, was not present.

P.W. 4, Sri Sachindra Nath Bhuyan, stated that he knew the complainant Sri Ratul Chandra Nath who came to his house on 23.11.91 and requested him to write an ejahar (FIR) and then as per his version the ejahar (Exhibit-5) was written. He further stated that after writing the ejahar he read over the same to him and he put his signature after admitting its correctness. He stated that Exhibit-5(1) was the signature of the complainant Sri Ratul Ch. Nath and that Exhibit-5(2) was his signature as a scribe. In cross-examination he admitted that the complainant did not tell him the name as to who had cut Dhruba to death and that is why he did not write the name of the assailant in the ejahar.

P.W. 5, Smti Tarulata Devi, stated that the accused-Appellant and the deceased woe her elder brothers and that on 23.11.91 her elder brother Dhurba was murdered but she did not see as to who murdered him. She further stated that she was not present at the time of occurrence and that she had gone to the house of a neighbour. After seeing commotion in their house, she returned and found her elder brother Dhruba with cut injuries on his person. She specifically stated that at that time accused Aran Nath was not present and that nobody could say as to who murdered Dhruba. She did not know either. This witness was not at all cross-examined.

P.W. 6, Sri Bhubaneswar Bhuyan, is the Investigating Officer who generally stated about the investigation of the case. He stated that on 23.11.91 he was attached with Sipajhar Police Station and on receipt''of the FIR the matter was entrusted to him for investigation. He visited the place of occurrence and found the dead body. He prepared die inquest report, Exhibit-3. Exhibit-3(2) was his signature. He seized a dao, Exhibit-4 and Exhibit 4(2) was his signature. He sent the dead body for postmortem examination and questioned the witnesses. He further stated that on 25.11.91 accused Arun Nath appeared at the Police Station and confessed that he killed his elder brother Dhruba Nath and thereafter he sent him to the Court for recording confessional statement. In cross-examination he stated that he reached the place of occurrence at about 7.30 p.m. and at that time accused was not present at home. He seized a dao which was produced by Dambaru Ram Nath who was not identified by the accused. He again reiterated in cross-examination that the accused surrendered himself at the Police Station on 25.11.91 at 2 p.m. He denied the suggestion that it was not a fact that the accused made the confession.

As has been noticed earlier the accused examined SohaRam Bora, D.W. 1, as defence witness. He stated that he knew the accused Aran Nath. His tjouse was half a furlong away from his house. He stated that he used to work as a day labourer alongwith Aran Nath at Guwahati. It was about 5 years back when the occurrence took place during ''Rasa'' festival and that someone killed Aran''s elder brother and at that time the accused was with him at Guwahati. On receipt of the news, next morning Aran went back home. In cross-examination he was constrained to admit that he did not remember the day or date of occurrence. He further stated in cross-examination that he gave the news to Anm about the killing ofhis elder brother which was told to him by one Khargeswar Nath of their village. The news was conveyed to Aran the same day and Aran left for Guwahati the next morning. He went on to state in cross-examination that he heard that Aran Nath had been apprehended and when he came home he learnt it He was further constrained to admit in cross-examination that he did not tell the police that Aran was at Guwahati on the day when his elder brother had been killed.

In statement u/s 313 Code of Criminal Procedure the accused retracted the confession and stated that he was at Guwahati and that he was informed by Suren Nath that his brother was murdered by somebody else and thereafter he came to Sipajhar village the next day and learnt that the dead body was taken to police station where he went. Police then asked him to shoulder the offence of murder of his elder brother and asked to make the statement.

Counsel for the Appellant has vehemently argued that the learned Single Judge has committed error in placing reliance upon the retracted confession to convict the Appellant. He has further submitted that the confessional statement could be used to corroborate the other evidence on record and that there is no other evidence to connect the accused Appellant with the crime. He has also argued that in view of the peculiar facts and circumstances of the case the plea of alibi should be believed by this Court. In the alternative, it has been argued that the Appellant should not have been convicted u/s 302 of the Indian Penal Code and at the most the Appellant could be convicted u/s 304 Part-I or Part-II.

The argument of the counsel for die Appellant has to be examined in the light of the evidence produced during trial. We have already marshalled the entire evidence in the earlier part of the judgment. The present is not a case where it can successfully be maintained that there is no other evidence against the Appellant other than the confessional statement. It deserves to be highlighted that the dead body Was admittedly found in the house where the Appellant along with other members of the family used to live. It has come in the statements of the prosecution witnesses that the Appellant was not present when the police arrived at the place of occurrence. Not only that it has been proved by the clear and unequivocal statement of the Investigating Officer that the Appellant surrendered himself before the police station after 2 days at 2 p.m. The absence of the accused Appellant for a period of 2 days, his voluntary surrender before the police are circumstances which go a long way to connect the accused Appellant with the offence.

It appears to us and rather we are of the firm view that the accused after committing the crime absconded from the village and later having felt repentant returned to the village and this is how he surrendered before the police and stated that he wanted to make a confession. The confessional statement is clear in its minute detail as to how and why he gave the injuries. The confessional statement reads as below:

I do cultivation in the land which is in the name of our father. I also run a cycle repairing shop at Rupahi Chowk. At night I stay at home. Sometimes I stayed in the shop also. About two years ago I fell sick. When I consulted with a Doctor he stated that I was suffering from PB and therefore I reduced my visit to the shop. Sometime I visit the house of Nitya Nath of our village. One day about a year ago my elder brother had beaten me because of my going to the house of Nitya Nath. By beating me On Saturday and Sunday following the last Durga Puja. My elder brother injured me in the hands said the chest. As a result of his beating I fell sick and I took doctor''s treatment for about two weeks. After my recovery I started going to the cycle shop regularly. On Saturday last at noon my elder brother Dhruba Nath questioned me about my visiting the house of Nitya Nath. When I said that I had not visited his house he fumed at me. I went to put up the obstacle. When I returned and found elder brother Dhruba sleeping I hacked him first in the head and then on the neck with the dao that I had used. In putting up the obstacle. Thereafter, I covered his body with the quilt that he was using. Then I washed the blood of the dao with the water of ''illegible'' kept it at home and left for the house of my brother-in-law at Rajapukhuri. I stated everything to my brother-in-law. When my brother-in-law asked me to do whatever I would like to, I left his house went to a family of Gopalpur and stayed there. Again on Sunday I stayed at Basachuba. Next day i.e. on yesterday I surrendered in the Sipajhar Thana on my own. I related everything to the O/C of the Thana. I have seen the dao that the police had seized. Today the dao has been brought to the Court. I had cut my elder brother with that dao.

As regards the plea bf alibi, the same deserves to be rejected on the short ground that D.W. 1 does not remember the day and date of occurrence. The accused in statement u/s 313 Code of Criminal Procedure has not at all stated that he was at Guwahati on any of the 2 days i.e. between the date of murder and the date of his surrender. No prosecution witness was examined in this direction.

In a nutshell the prosecution has been able to prove the guilt of die accused beyond reasonable doubt not only by producing the confessional statement but also by producing prosecution witnesses who have deposed about the absence ofthe accused for 2 days and his surrender before the police. As has been noticed above, the body was admittedly found in the house of which the accused was one of the inmates. In view of all these evidence, confessional statement can definitely be used by the prosecution as a corroborative piece of evidence.

Having found the Appellant to be guilty of the offence of killing his elder brother, the question arises as to whether he had any intention to kill. In other words the short question before us is whether the case in hand is covered by Section 302 of the Indian Penal Code or the accused can be convicted u/s 304 of the Indian Penal Code. Having given our deep thought to this aspect of the matter we afe of the view that the case in hand would fall u/s 304 Part II of the Indian Penal Code. The deceased was attacked when he was asleep. There was nothing to prevent the Appellant to give more injuries if he had the intention to kill the deceased. The very fact that he was given two injuries as found by the doctor shows that there was no intention on the part of the Appellant to kill his elder brother. The doctor has not stated that the injuries were sufficient in the ordinary course of nature to cause death. From the perusal of the injuries it cannot be inferred that there was any intention on the part of the accused either to cause death or to cause such bodily injury as was likely to cause death. In any case, the present case is on the border line between murder and culpable homicide not amounting to murder and, therefore, the Appellant is entitled to the benefit of reasonable doubt.

In view of all the circumstances, we are of the view that the offence of the Appellant can be converted to Section 304 Part-II of the Indian Penal Code and while doing so, we sentence him to undergo rigorous imprisonment for a period of 7 years and in addition thereto impose a fine of Rs. 500/- failing which he would undergo rigorous imprisonment for a further period of 2 months.