Gopal Ghatwal Vs. State of Tripura - Court Judgment

Excerpt:
- - 2. precisely, the prosecution case could be narrated thus :at dawn hour on 27.11.1993, shri krishna ghatwal, the informant, jagnanarayan ghatwal (deceased). shri laxman debnath and shri sridam ghatwal were enjoying heat of fire under a mango tree at ghatwal basti within village karangicharra under khowai police station. according to the learned counsel for the appellant, it is not a case of culpable homicide amounting to murder, but having been provoked by the ill deeds, immoral in nature, of the deceased, the appellant having been deprived of self-control committed the offence and as such the conviction, recorded under section 302 ipc could not be sustained, instead according to the learned counsel for the appellant, at best the appellant could have been convicted under section 304 part-ii of the ipc mr. b.b. deb, j. 1. the sole appellant shri gopal ghatwal preferred this criminal appeal against the judgment of conviction, recorded by the learned additional sessions judge, west tripura. agartala on 24.11.1995 in sessions trial no. 176(wt/k)/1994, by which the appellant was convicted under section 302 ipc with a sentence of rigorous imprisonment for life and a fine of rs. 3,000, in default one year additional r.i. 2. precisely, the prosecution case could be narrated thus : at dawn hour on 27.11.1993, shri krishna ghatwal, the informant, jagnanarayan ghatwal (deceased). shri laxman debnath and shri sridam ghatwal were enjoying heat of fire under a mango tree at ghatwal basti within village karangicharra under khowai police station. suddenly, the appellant shri gopal ghatwal came to the fire place with a 'takkal' (dao, the traditionally used sharp cutting weapon) in hand and gave 'two successive blows' on the head of jagnanarayan, as a result, jagnanarayan received severe head injury, and fell down on the ground. with the help of others, shri krishna ghatwal snatched away the dao from the hand of the appellant and kept him confined in a room. some guarded the room and some people carried the injured in a 'changari' (bamboo made stretcher) to khowai hospital, but unfortunately on the way to hospital, jagnanarayan succumbed to the injuries. lodged the fir promptly with the police. police happened to the spot and arrested the appellant. on production before the learned sub-divisional judicial magistrate, khowai, the appellant made a confessional statement which was recorded under section 164 cr.pc. on completion of investigation, police filed charge sheet against the appellant under section 302 ipc. 3. the case being a sessions triable one, the learned additional sessions judge, khowai framed charge against the convict-appellant on 7.2.1995 which for convenience sake, is re-produced below : 'that you on or about 27th day of november, 1993 at about 0600-0630 hours at bitonia bari ghatowal basti, west karangi cherra under khowai police station committed murder by knowingly or intentionally causing the death of jagya narayan ghatowal by hitting him with sharp cutting weapon to wit a takkal and thereby committed an offence punishable under section 302 of the indian penal code and within my cognizance.' 4. during trial, the prosecution examined as many as 22 witnesses of whom shri krishna ghatowal, the informant was examined as pw 1, shri sridam ghatowal as pw 4, and shri laxman debnath as pw 12, who claimed to be the eye witnesses of the incident. other witnesses who happened to the spot found the deceased lying on the ground with bleeding head injuries and the appellant with a dao in his hand. from the depositions of the eye witnesses, it remains proved that it was the appellant who gave two successive dao blows on the head of the deceased. there is no material discrepancy in their testimonies. 5. mr. a.c. bhowmik, learned counsel appearing on behalf of the appellant fairly submits that the testimonies of the eye witnesses undoubtedly proved the incident of assault being committed by the appellant with a sharp cutting weapon called 'takkal' on the head of the deceased resulting in his death, but vehemently argues that the back ground of the case which constituted the motive behind it had been suppressed by the eye witnesses. according to the learned counsel for the appellant, it is not a case of culpable homicide amounting to murder, but having been provoked by the ill deeds, immoral in nature, of the deceased, the appellant having been deprived of self-control committed the offence and as such the conviction, recorded under section 302 ipc could not be sustained, instead according to the learned counsel for the appellant, at best the appellant could have been convicted under section 304 part-ii of the ipc mr. bhowmik led us to the confessional statement made by the appellant, proved during trial vide exbt. 5 though during trial while pws were examined, defence made no attempt to unfold the facts of grave and sudden provocation which according to the appellant prompted him to commit such offence. 6. on perusal of the testimonies of pws, we find there is no suggestion put by the defence to any of the witnesses touching the provocation. however, the learned trial court in recording the conviction placed reliance upon the confessional statement also being a piece of prosecution evidence and as such we propose to examine the contents of confessional statement recorded by pw 18 the learned sdjm. the confessional statement was recorded on 6.12.1993 while the appellant had been in judicial custody. it is correct rather admitted by the learned public prosecutor also that the appellant made a confession. the relevant part of the confessional statement pertaining to the plea of sudden provocation is re-produced below : 'in the night of preceding friday the deceased, my wife's sister's husband entered in my house while myself and my wife were sleeping and made an attempt to rape my wife. hearing sound of scuffling, i woke up and the deceased fled away. in the mid-night again while my wife came out of the hut and proceeded to urinate, the deceased embraced her, fell her on the ground, mounted on her-body and made attempt to rape her. my wife raised cry. i came out of my hut and on seeing me the deceased fled away. at dawn while i was proceeding for work with takkal in hand, i found the deceased along with others enjoying heat of fire under a mango tree. i stabbed two blows with my takkle on the head of the deceased.' mr. bhowmik, learned counsel for the appellant submits that though during trial the appellant retracted the confessional statement, but the learned trial court placed reliance upon the same and as such the confessional statement made by the appellant undoubtedly has bearing in the present case to constitute the plea of grave and sudden provocation. on that score, mr. bhowmik submits that the learned trial court ought to have taken into consideration the back ground of the incident as had been narrated by the appellant in his 164 statement. even the confessional statement stood retracted during trial in view of the decision rendered by the hon'ble apex court in shankaria, appellant v. state of rajasthan, respondent, reported in air 1978 sc 1248 and in the case of state of u.p. appellant v. lakhmi, respondent, reported in air 1998 sc 1007, the same ought to have been taken into consideration, mr. bhowmik submits. 7. the appellant stabbed two successive blows with a sharp cutting weapon on the head of the deceased resulting in his death and as such in our considered opinion, the appellant committed an offence of culpable homicide as has been defined under section 299 of the ipc. the nature of the injuries as had been detected by pw 16 who conducted the autopsy on the corpus appears to be sufficient in ordinary coarse of nature to cause death. from the deposition of pw 16, it appears that the deceased sustained two cut injuries on his head. both the injuries found on the fore-head of the deceased, one measuring 7' x 1/2cm x 1' and another measuring 6' x 1/2cm x 1'5' and according to the doctor (pw 16) the injuries were sufficient in ordinary course of nature to cause death. 8. on perusal of the ocular evidence of eye witnesses coupled with the deposition of medical officer (pw 16), we are of the considered opinion that it is a case of culpable homicide. now, the question is to be answered whether it is a case of culpable homicide amounting to murder or culpable homicide not amounting to murder ? having gone through the statutory definition of 'culpable homicide amounting to murder' and 'culpable homicide not amounting to murder' in view of section 300 ipc, we find that having regard to the confessional statement, recorded under section 164 cr.pc, the case undoubtedly falls under 'explanation i' of section 300 ipc. the deceased made an attempt to commit rape on the wife of the appellant in the preceding night and while at the dawn hour the appellant was proceeding to his work with a takkle in hand, he found the deceased enjoying heat of fire under a mango tree and being emotive he lost his self-control on reminiscence of the happening of preceding night assaulted the deceased with takkle and having regard to the aforesaid admitted fact available in his confessional statement, we are of the considered opinion that it is a case of 'culpable homicide not amounting to murder.' accordingly, the conviction recorded by the learned trial court under section 302 ipc deserves to be altered to one under section 304 (part-i) of the ipc and we accordingly alter the conviction. 9. the conviction of the appellant stands altered to section 304 (part-i of the ipc. as to sentence, the learned trial court on recording conviction under section 302 ipc, imposed life sentence as minimum one prescribed, but since we alter the conviction under section 304 (part-i) ipc, the punishment prescribed is imprisonment for life or imprisonment of either description for a term which may extend to ten years. the appellant was apprehended on the date of incident itself (27.11.1993). he was produced before the court on 28.11.1993 and since then he has been under detention till date and as such having regard to what have been discussed in the preceding paragraphs, we are of the considered opinion that a sentence of ten years' ri will meet the ends of justice in the present case. 10. in the result the appeal is partly allowed. the appellant'sconviction stands altered to section 304 (part-i) ipc and his sentenceof life imprisonment has been reduced to one for ten years' ri. theperiod undergone during investigation, trial and appeal (w.e.f.26.11.1993) is to be taken into account in computing the period often years' ri.

Judgment:

B.B. Deb, J.

1. The sole appellant Shri Gopal Ghatwal preferred this Criminal Appeal against the judgment of conviction, recorded by the learned Additional Sessions Judge, West Tripura. Agartala on 24.11.1995 in Sessions Trial No. 176(WT/K)/1994, by which the appellant was convicted under Section 302 IPC with a sentence of rigorous imprisonment for life and a fine of Rs. 3,000, in default one year additional R.I.

2. Precisely, the prosecution case could be narrated thus :

At dawn hour on 27.11.1993, Shri Krishna Ghatwal, the informant, Jagnanarayan Ghatwal (deceased). Shri Laxman Debnath and Shri Sridam Ghatwal were enjoying heat of fire under a mango tree at Ghatwal Basti within village Karangicharra under Khowai Police Station. Suddenly, the appellant Shri Gopal Ghatwal came to the fire place with a 'takkal' (dao, the traditionally used sharp cutting weapon) in hand and gave 'two successive blows' on the head of Jagnanarayan, as a result, Jagnanarayan received severe head injury, and fell down on the ground. With the help of others, Shri Krishna Ghatwal snatched away the dao from the hand of the appellant and kept him confined in a room. Some guarded the room and some people carried the injured in a 'changari' (bamboo made stretcher) to Khowai Hospital, but unfortunately on the way to hospital, Jagnanarayan succumbed to the injuries. Lodged the FIR promptly with the police. Police happened to the spot and arrested the appellant. On production before the learned Sub-Divisional Judicial Magistrate, Khowai, the appellant made a confessional statement which was recorded under Section 164 Cr.PC. On completion of investigation, police filed charge sheet against the appellant under Section 302 IPC.

3. The case being a sessions triable one, the learned Additional Sessions Judge, Khowai framed charge against the convict-appellant on 7.2.1995 which for convenience sake, is re-produced below :

'That you on or about 27th day of November, 1993 at about 0600-0630 hours at Bitonia Bari Ghatowal Basti, West Karangi Cherra under Khowai Police Station committed murder by knowingly or intentionally causing the death of Jagya Narayan Ghatowal by hitting him with sharp cutting weapon to wit a takkal and thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance.'

4. During trial, the prosecution examined as many as 22 witnesses of whom Shri Krishna Ghatowal, the informant was examined as PW 1, Shri Sridam Ghatowal as PW 4, and Shri Laxman Debnath as PW 12, who claimed to be the eye witnesses of the incident. Other witnesses who happened to the spot found the deceased lying on the ground with bleeding head injuries and the appellant with a dao in his hand.

From the depositions of the eye witnesses, it remains proved that it was the appellant who gave two successive dao blows on the head of the deceased. There is no material discrepancy in their testimonies.

5. Mr. A.C. Bhowmik, learned counsel appearing on behalf of the appellant fairly submits that the testimonies of the eye witnesses undoubtedly proved the incident of assault being committed by the appellant with a sharp cutting weapon called 'takkal' on the head of the deceased resulting in his death, but vehemently argues that the back ground of the case which constituted the motive behind it had been suppressed by the eye witnesses. According to the learned counsel for the appellant, it is not a case of culpable homicide amounting to murder, but having been provoked by the ill deeds, immoral in nature, of the deceased, the appellant having been deprived of self-control committed the offence and as such the conviction, recorded under Section 302 IPC could not be sustained, instead according to the learned counsel for the appellant, at best the appellant could have been convicted under Section 304 Part-II of the IPC Mr. Bhowmik led us to the confessional statement made by the appellant, proved during trial vide Exbt. 5 though during trial while PWs were examined, defence made no attempt to unfold the facts of grave and sudden provocation which according to the appellant prompted him to commit such offence.

6. On perusal of the testimonies of PWs, we find there is no suggestion put by the defence to any of the witnesses touching the provocation. However, the learned trial court in recording the conviction placed reliance upon the confessional statement also being a piece of prosecution evidence and as such we propose to examine the contents of confessional statement recorded by PW 18 the learned SDJM.

The confessional statement was recorded on 6.12.1993 while the appellant had been in judicial custody. It is correct rather admitted by the learned Public Prosecutor also that the appellant made a confession. The relevant part of the confessional statement pertaining to the plea of sudden provocation is re-produced below :

'In the night of preceding Friday the deceased, my wife's sister's husband entered in my house while myself and my wife were sleeping and made an attempt to rape my wife. Hearing sound of scuffling, I woke up and the deceased fled away. In the mid-night again while my wife came out of the hut and proceeded to urinate, the deceased embraced her, fell her on the ground, mounted on her-body and made attempt to rape her. My wife raised cry. I came out of my hut and on seeing me the deceased fled away. At dawn while I was proceeding for work with takkal in hand, I found the deceased along with others enjoying heat of fire under a mango tree. I stabbed two blows with my takkle on the head of the deceased.'

Mr. Bhowmik, learned counsel for the appellant submits that though during trial the appellant retracted the confessional statement, but the learned trial court placed reliance upon the same and as such the confessional statement made by the appellant undoubtedly has bearing in the present case to constitute the plea of grave and sudden provocation. On that score, Mr. Bhowmik submits that the learned trial court ought to have taken into consideration the back ground of the incident as had been narrated by the appellant in his 164 statement. Even the confessional statement stood retracted during trial in view of the decision rendered by the Hon'ble Apex Court in Shankaria, appellant v. State of Rajasthan, respondent, reported in AIR 1978 SC 1248 and in the case of State of U.P. appellant v. Lakhmi, respondent, reported in AIR 1998 SC 1007, the same ought to have been taken into consideration, Mr. Bhowmik submits.

7. The appellant stabbed two successive blows with a sharp cutting weapon on the head of the deceased resulting in his death and as such in our considered opinion, the appellant committed an offence of culpable homicide as has been defined under Section 299 of the IPC. The nature of the injuries as had been detected by PW 16 who conducted the autopsy on the corpus appears to be sufficient in ordinary coarse of nature to cause death. From the deposition of PW 16, it appears that the deceased sustained two cut injuries on his head. Both the injuries found on the fore-head of the deceased, one measuring 7' x 1/2cm x 1' and another measuring 6' x 1/2cm x 1'5' and according to the doctor (PW 16) the injuries were sufficient in ordinary course of nature to cause death.

8. On perusal of the ocular evidence of eye witnesses coupled with the deposition of medical officer (PW 16), we are of the considered opinion that it is a case of culpable homicide. Now, the question is to be answered whether it is a case of culpable homicide amounting to murder or culpable homicide not amounting to murder ?

Having gone through the statutory definition of 'culpable homicide amounting to murder' and 'culpable homicide not amounting to murder' in view of Section 300 IPC, we find that having regard to the confessional statement, recorded under Section 164 Cr.PC, the case undoubtedly falls under 'Explanation I' of Section 300 IPC.

The deceased made an attempt to commit rape on the wife of the appellant in the preceding night and while at the dawn hour the appellant was proceeding to his work with a takkle in hand, he found the deceased enjoying heat of fire under a mango tree and being emotive he lost his self-control on reminiscence of the happening of preceding night assaulted the deceased with takkle and having regard to the aforesaid admitted fact available in his confessional statement, we are of the considered opinion that it is a case of 'culpable homicide not amounting to murder.'

Accordingly, the conviction recorded by the learned trial court under Section 302 IPC deserves to be altered to one under Section 304 (Part-I) of the IPC and we accordingly alter the conviction.

9. The conviction of the appellant stands altered to Section 304 (Part-I of the IPC.

As to sentence, the learned trial court on recording conviction under Section 302 IPC, imposed life sentence as minimum one prescribed, but since we alter the conviction under Section 304 (Part-I) IPC, the punishment prescribed is imprisonment for life or imprisonment of either description for a term which may extend to ten years.

The appellant was apprehended on the date of incident itself (27.11.1993). He was produced before the court on 28.11.1993 and since then he has been under detention till date and as such having regard to what have been discussed in the preceding paragraphs, we are of the considered opinion that a sentence of ten years' RI will meet the ends of justice in the present case.

10. In the result the appeal is partly allowed. The appellant's

conviction stands altered to Section 304 (Part-I) IPC and his sentence

of life imprisonment has been reduced to one for ten years' RI. The

period undergone during investigation, trial and appeal (w.e.f.

26.11.1993) is to be taken into account in computing the period of

ten years' RI.