Khagen Jita vs State of Assam

This appeal is directed against the judgment dated 15.11.94 delivered by learned Sessions Judge, Dibrugarh in Sessions Case No. 133 (D)/92, thereby holding the Appellant guilty of offence punishable u/s 302 IPC and sentenced him to undergo imprisonment for life

Prosecution case stated in brief was that on 15th August, 1991 around midnight, an altercation between two brothers Mongal Jita and Khagen Jita took place. Hearing the hue and cry two sons of Mongal Jita went to the place and enquired as to what was going on. They lived in the same compound surrounded by wall. It is alleged that accused Khagen Jita brought out a dao from his house and dealt dao blows on Mongal Jita, which resulted in the following injuries as noted by the Medical Officer, P.W. 7 in his post-mortem examination report:

Head is separated from the trunk of the level of neck by 4 (four) Nos. of incised wounds.

(a) Incised wound 26 x 4 Cm. size running from right side of neck to left chest wall. Skin, muscles, 1st rib, vessels, nerves, trashes esophagus and left side of the clavicle are cut.

(b) One incised wound in front of the neck running from clavicle to cervical vertebra. Skin, Muscles, vessels, trashes, oesphagus are cut completely.

(c) One incised wound in front of the neck which severes the head (decapitate) from the trunk by cutting all structures at the level of 2nd cervical vertebrae.

(d) Incised wound from left shoulder to neck in beveled manner cutting shoulder joint clavicle and part of the neck with skin, muscles and vessels, nerves and trachea.

Incised wound 8x2 Cm. x bone deep cutting the lower end of the radius in the right wrist joint.

The incident was reported to the police by Shamu Goala, the son of the deceased, examined as P.W. 6. This ejahar, Ext. 4, resulted in registering a case u/s 302 IPC. It was taken under investigation by P.W. 8 who proceeded to the place of occurrence and held an inquest as per Ext. 3. It is the prosecution case that the accused appeared at the police outpost carrying along with him the dao and the severed head of his brother Mongal. He was arrested by P.W. 8 it was at his instance that the headless body lying in the court-yard of the accused house was shown to the police. The head was placed joining the trunk and it was found by the I.O. P.W. 8 that both the parts were of the same person. The dead body was sent to Medical College Hospital for autopsy which was performed by P.W. 8. The Dao produced by the accused was also seized as per Ext. 1. On completion of investigation the accused was forwarded to trial, he was charged and tried for the above offence. His defense as can be gathered from the statement recorded u/s 313 Code of Criminal Procedure was one of plain denial denouncing the prosecution case as false. The prosecution examined in all nine witnesses, including the I.O., P.W. 8 and the Medical Officer, performing the autopsy, P.W. 9. The Appellant''s wife Shefali, P.W. 2 and sister Priya, P.W. 1, the informant P.W. 6 and 7 are the sons of the deceased. The remaining two witnesses, P.Ws. 4 P. Gora is an attesting witness to the inquest, Ext. 3, while P.W. 5, Krishna Kharia is the person who informed the Secretary of the Village Defense Party (V.D.P.) about the incident. It is the evidence of P.W. 1, 6 and 7 which is material for disposal of this appeal.

Learned Counsel appearing for the Appellant raised the following points:

(1) that there is no inter-se corroboration in the testimony of prosecution witnesses which suffers from inherent contradictions;

(2) that the witnesses examined by the prosecution are closely related and should not have been relied upon when other witnesses were available to the prosecution;

(3) the weapon of attack was not exhibited during the trial; their conduct belies their claim;

(4) the trial court has failed to consider the evidence of P.W. 1 in its proper perspective if viewed and accepted, the accuseds are entitle to acquittal.

(5) considering the facts as revealed in the evidence of P.W. 1, the Appellant squarely falls within the purview of Clause thirdly to Section 300 IPC, alternatively it is covered by Exception (1) of Section 300 IPC, At any rate, the conviction as recorded u/s 302 IPC is not proper.

Learned Public Prosecutor, Mr Goswami, appearing for the Respondent State on the other hand, submitted that the so called infirmities pointed out in the prosecution evidence lent assurance to their testimony rather than discredit the witnesses. According to him the pleas raised in appeal, do not arise for consideration and even if the evidence of P.W. 1 is taken on its face value yet no such exception is claimed by the Appellant at this belated stage of appeal is available to him.

Before proceeding to deal with these rival contentions as advanced at the Bar it would not be out of place that the learned trial Judge while dealing with the evidence of P.W. 1 has observed that she was concealing facts which were within her knowledge. Therefore, she could not be treated as a reliable witness. Secondly as claimed by her that she reported the incident to P.Ws. 6 and 7, the sons of the deceased, who have denied any such report being made, she can not be treated as a trustworthy witness. It may also be noted that P.W. 1 is the real sister of the accused Appellant and was the step sister of the deceased.

The gist of her evidence is that on the fateful night, the deceased was sleeping at her house, till late in the night. He was heavily drunk. To quote in her own words:

As Mangal had grabbed me in my house on the said night with an evil intention, I had released myself from his clutch, had gone to his house and informed his two sons there. Both of them had come out. I had stayed there with Mangal''s wife for some time. Thereafter I had gone to Suren''s house. I had spent the night at Suren''s house. Suren is my step brother. Following day in the hospital I could know about the death of Mangal.

In answer to a Court''s question, this witness further replied:

The accused is my consanguine brother. I live separately, one nal away from the house of the accused. At that time I did not get married. I used to live separately. Mangal is survived by his wife. I had not told the accused anything about Mangal''s bad acts.

It needs to be noted that it was in answer to the Court''s question that the witness stated that she had not told her brother the Appellant about the ''bad act'' of Mangal and this seems to have gone a long way with the trial Court in disbelieving her on the point. It would be noticed from the trial Court''s judgment that the learned trial Judge has castigated the witness as suppressing truth. This approach by itself is rather curious and seems to be quite adequate. Priya, at the time of the incident was unmarried. Her age as can be determined from her deposition was around 35 years. At the very outset she denied having any knowledge about the death of Mangal. At the time of incident she must have been around 30 and the deceased was about 50-55 years of age as can be gathered from the post-mortem examination report. The age of the accused as given out in his examination u/s 313 Code of Criminal Procedure was about 35 years. Of course, these are rough approximation but it does indicate as to why after wordy duel P.W. 1 preferred to stay with the wife of the deceased. The learned trial Judge expects a common woman of 30 to come out with every minute detail of what transpired when the deceased was sleeping in her house. Ignoring the ground realities that firstly the deceased was her brother though step, whose sons were of her age, whether in such circumstances she would come out with disclosure of minutest details of human behaviour or misbehavior. The distrust shown in her testimony runs counter to what has been observed by the Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat,

In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorse-less cross examination. And we must do so with a logical, and not an opiniated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focused on the Indian horizon.

Having enumerated the probable factors impelling the prosecutrix to falsely Implicate someone on a charge of sexual assault, the Supreme Court has observed:

By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statement or of overstating the case it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural society. It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Because (1)A girl or a woman in the tradition bound non-permissible society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbors. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by Ors. will always haunt her. (8) She would feel extremely embarrassed in relating the incident to Ors. being overpowered by a feeling of shame on account of the upbringing in a tradition-bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honor is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband''s family of a married woman, would also more often than not want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to lace interrogation by the investigating agency, to face the court, to face the cross-examination by counsel for the culprit and the risk of being disbelieved, acts as a deterrent.

The learned trial Judge has repeatedly referred to P.W. 8 who is the I.O. Really speaking nothing material tums on the testimony of this witness, who was undoubtedly not an eye witness All that he has stated is that on 16.8.91 around 12-30 A.M., the accused appeared at the police outpost with a dao and a severe head. He has further stated that the accused said that he was carrying the head of his elder brother which he had cut. Now this statement has not been reduced to writing in the FIR. The question therefore of considering an inculpatory part of a statement contained in the FIR as alleged by an accused or its admissibility in evidence, does not arise in this appeal. It is also significant to note that even the beheaded head was not seized when it is alleged to have teen brought by the accused to the police outpost. He had not seized the Dao when it was brought to the police station but waited for its seizure till completion of the inquest report. He did not bother to seize the blood stained clothes of the accused. The G.D. Entry claimed to have been made by him has not seen the light of the day for reasons best known to the prosecution. It has not been produced. The dao seized was not even sent for chemical examination, no such report is forthcoming, In such circumstances the conduct of P.W. 8 as an I.O. is not free from criticism.

Now adverting to the evidence of P.Ws. 6 and 7 both of them are the sons of the deceased. It is their case that hearing a ''hulla'' when they came out they found their father in an altercation with the accused. They also claimed to have seen the accused giving dao blows to their father. It has come in the evidence of P.W. 6 that by the time he came to the ''Thana'' with the ejahar, Ext. 4 the rest was already there. P.W. 6 has in his cross-examination admitted that on the date of incident his father was at the house of P.W. 1. Although he also admits that P.W. 1 had rushed up to their house but has also hastened to add that she did not say that she fled home as Mangal, their father had tried to do bad act on her. He has denied the suggestion thrown to him on the point. More or less in the same vein in the evidence of P.W. 7 who admits that P.W. 1 had come to their house but has denied the story of bad act. It is significant to note that P.W. 1 who came out with a story of attempted molestation by the deceased Mangal, was not declared hostile by the prosecution, a course, undoubtedly open to it. Although the story as appeared in the examination of the witness, yet she could have been declared hostile which the prosecution has not choosen to do. Her evidence could not therefore be lightly brushed aside as has been done by the learned trial Judge.

In view of the testimony of P.W. 6 and 7, so far as the assault by the accused on Mangal is concerned coupled with his own conduct, there can be no doubt that it was the accused Appellant who inflicted the above injuries. The only question that remains to be considered is whether the attempted molestation to his sister by the deceased if taken as established, affords a ground of defense either under clause thirdly to Section 300 IPC or Exception 1 to Section 300 IPC.

Learned Counsel appearing for the Appellant has referred to us the following judgments:

(1) Vishwanath Vs. The State of Uttar Pradesh,

(2) AIR 1991 8 (SC)

(3) K.M. Nanavati Vs. State of Maharashtra,

As has been observed by the Supreme Court in Chandra Bhal Vs. The State of U.P., precedents have but little value to determine the right of private defense in a particular set of facts and circumstances. The plea of private defence in the two cases can not be said to give rise to or necessarily involve the some issue which require the same evidence for the purpose of proof. The first case rehed upon by the learned Counsel is quite distinguishable on facts. It was a case a shere the Appellant''s sister was not only been forcibly carried away or abducted but was also actually assaulted in presence of the Appellant-brother. It was in such of cumstances that the Supreme Court held that the right of private defense of body of his sister had accrued to the Appellant. The other case relied upon was where the plea is not specifically taken the proposition laid down in Shyam Sundar''s case is it well established principle of criminal jurisprudence, even if no specific plea of self defense is raised by the accused, yet, if on material available on record such a plea accrued to the accused, it is the duty of the Court to consider the same and that is what really we are doing in the instant case. The plea taken by the accused at the trial was one of plain denial. Still, however, on the basis of evidence of P.W. 1 we are examining the feasibility of such a plea being available to the accused. (SIC)abati''s case has been referred to us on the point of grave and sudden provocation which we shall presently advert to.

Even if the evidence of P.W. 1 is accepted as it is, yet it does not go to suggest that the accused was present at the time when the deceased attempted to least her as alleged by P.W. 1. The question of applicability of clause thirdly to Section 300 IPC is therefore not attracted. The Supreme Court in umpteen cases has held that the right of private defense of persons or property is not a right of appraisal or punishment and can not be used for vindictive, aggressive or retribution purpose. Of course, it is true that the exercise of such right, is not to be viewed and weighed in golden scale. Now adverting to the evidence in the mstant case. P.W. 1, the Appellant''s sister at that odd hour in the midnight had come running to the house of P.W. 6 and 7 to seek shelter although there is no direct specific evidence available yet, it can be inferred that the deceased, who had allegedly attempted to molest Priya also followed her. The place of occurrence is admittedly in the same compound of the accused, deceased and the P.Ws. 1, 6 and 7, all resided in the tea estate in Tenglan, although their houses were situated at a short distance measuring a couple of nuls (about 12). P.W. 1 has come out of the house, rushed to the house of P.Ws. 6 and 7, who at that time were residing in a ''kuchha'' House, as stated by P.W. 7. The accused also resided in a Kuchha house adjacent to that of his father. The circumstances which compelled Priya to run away from the house can well be gauged, she must have raised hulla as has been testified by P.W. 2. It is the prosecution case that P.Ws. 6 and 7 had come out on hearing hue and cry raised by P.W. 1. the fact that the deceased had made a sexual assault on Priya must have come to light and the accused, the real brother of P.W. 1 could not have suffered such an ignominy in silence. His reaction as a brother of having coming to know about the attempted molestation of his sister can well be inferred from the evidence adduced by the prosecution. The question that arises for consideration is whether in such circumstances, can it be said that he acted under grave and sudden provocation as contemplated by Exception 1 to Section 300 IPC. Grave and sudden provocation has been explained by the Supreme Court in Nanavati''s case (supra) in the following words:

The Indian law relevant to the present enquiry may be stated thus: (1) the test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self control. (2) In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

Assuming for a while that the accused had momentarily lost self-control on coining to learn that his sister was attempted to be molested by the deceased let us see how his reaction has translated into action. The injuries as found by the Medical Officer having beheaded Mongal, literally chopping off the neck, the accused still inflicted and repeated several blows. The accused acting cruelly can not claim the benefit of the Exception u/s 300 IPC (See Surinder Kumar Vs. Union Territory, Chandigarh, and Prabhu and others Vs. State of Madhya Pradesh, In this connection it would not be out of place to note that the accused had gone into his house and again came out with a dao and hacked his step brother. Surprisingly it was in the cross examination of P.W. 6 that it was suggested to him confronting him with his previous statement as made by him to the police that the accused had gone inside the house and brought a dao and the contradiction has been proved by P.W. 8 the I.O. in his evidence. The same witness has also testified to the effect that the accused wanted to cut his brother Ramu as well, and this part of his statement has not even been attempted to be challenged in the cross-examination. Considering the cruelty of the act and the preparations made, as established by evidence, it can not be said that the accused acted under grave and sudden provocation.

For the foregoing reasons, this appeal fails it is accordingly dismissed. The conviction and sentence as recorded by the trial court are maintained.