Suman Shyam. J
1. The appellant Sanjay Das has been convicted under Section 302 of the Indian Penal Code (IPC) for committing the murder of his sister Smt. Kalpana Das and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/-, and in default, to undergo rigorous imprisonment for a further period of three months.
2. The prosecution case, in short, is that Kalpana Das was the elder sister of the appellant Sanjay Das who used to work as a member of an NGO “Nandini”. On 28.03.2017, a quarrel broke out between the accused and his sister whereby, the accused had assaulted the victim as a result of which, she had sustained grievous injuries in her head resulting into her death.
3. On 28.03.2017, Sri Diganta Kumar Das, the president of the NGO “Nandini”, had lodged an ejahar with the Officer-in-charge of Rangapara Police Station based on which, Rangapara P.S. Case No.49/2017 corresponding to G.R. No.1090/2017, was registered under section 302 IPC. During investigation, the I.O. had visited the place of occurrence and recorded the statements of the witnesses. Post-mortem was conducted on the body of the deceased. The accused was also arrested on 11.04.2017. On completion of investigation, the I.O. had submitted charge-sheet, based on which, formal charge was framed against the appellant under section 302 IPC. The appellant had pleaded not guilty. Hence, the matter was sent up for trial.
4. PW-1, Diganta Kumar Das, i.e. the informant in this case, had deposed that the deceased Kalpana Das was an executive member of the NGO “Nandini”. PW-1 had also stated that on 28.03.2017, at about 9.30/10 a.m. one Nipa Rana, an associate of deceased had telephonically informed him that Kalpana had died and asked him to come immediately. At that time he was proceeding to Tezpur but after receiving the information, he had returned back to the house of the deceased at Rangapara Railway Officers’ Colony and saw the dead body of Kalpana Das lying in the courtyard of the accused. PW-1 had also stated that in the meantime, members of the organisation had informed the police and the police had also arrived at the place of occurrence. According to the PW-1, on being asked by the police, the accused had confessed in his presence, the fact that he had killed his elder sister Kalpana Das due to anger. PW-1 has also confirmed that Ext-1 was the F.I.R. and Ext-1(1) was his signature. During his cross-examination, the witness has admitted that he has not mentioned in the F.I.R. that deceased Kalpana Das was an executive member of his NGO. The witness had confirmed the fact that the accused had stated before the police that he had killed his elder sister Kalpana Das due to anger. The aforesaid testimony of the witness could not be dislodged by the defence side.
5. PW-2, Arup Kumar Choudhury is another office bearer of the NGO Nandini and he has deposed before the court that he knew Kalpana Das, the elder sister of the accused, who was a member of their NGO. The incident took place on 28.03.2017 and at about 10/10.30 a.m. on the day of occurrence, when he was about to reach Guwahati Railway Station, his president Diganta Kumar Das i.e. PW-1 had telephonically informed him that he had heard that Kalpana Das has died. From the train itself he had made enquiries and came to know that the news of death of Kalpana Das was genuine. PW -2 had further stated that at about 2.30 p.m. he again got information over phone that Kalpana Das was murdered. On the next day, he had returned from Guwahati and after about a week, when he had convened a meeting of the NGO, one Sajal, who is the brother-in-law of the accused, had informed the meeting that Kalpana was killed by the accused. During his cross-examination the testimony of the witness could not be shaken.
6. PW-3, Smti. Sobha Das is the mother of both the accused and the victim. She had deposed that on the date of occurrence, in the morning, while she was returning from natures call, she saw her daughter Kalpana Das lying in the varandah and one person ran away from near her. PW-3 had stated that she could not identify the person who had fled away. PW-3was declared as a hostile witness and in her cross-examination by the prosecution side, the witness had denied of having stated before the police that “on 28.03.17 in the morning when she was in the bathroom, accused Sanjay and Kalpana started quarrelling in the veranda and later on Sanjay assaulted Kalpana. When she came and tried to save Kalpana, the accused also pushed her and as a result she fell down. The accused killed her daughter by assaulting Kalpana in front of her.” During her cross-examination by the defence, PW-3 had stated that her daughter Kalpana used to work in “Nandini”, an NGO of Rangapara, and that she did not know with whom Kalpana used to roam till 1.00 a.m.
7. PW-4, Miss Banu Najnin Rahman was a colleague of the deceased working in the NGO “Nandini” and the witness had deposed that on the day of the occurrence, while she was in her house, Rama Swakhor, another worker of the NGO, had telephonically informed her that Kalpana died due to assault by the accused. PW-4 has confirmed the fact that she had put her signature on the F.I.R. Ext-1 and that Ext-1(2) was her signature. PW-4 had also deposed that she had noticed injuries on the back of the dead body and on being asked by the police in her presence, the accused had admitted that he had killed his sister Kalpana. The testimony of the said witness also could not be dislodged by the defence side during her cross-examination.
8. PW-5, Dr. Palashmani Keot, had conducted post-mortem examination on the dead body of the deceased on 29.03.2017. Ext-2 is the post-mortem report which mentions about the following injuries in the dead body :- “(1) 5x 4 x 3.5 cm laceration on right side of forehead. (2) Over the right side of neck bruise of size 1.5 x 1 x 0.5 cm. (3) Over back – abrasion of size 2 x 2.5 cm. The doctor has opined that the cause of death is due to shock and haemorrhage as a result of the head injury.
9. PW-6, Swapan Dey, had deposed that he knew deceased Kalpana and he had heard about the incident of assault between the accused and his sister Kalpana wherein she died.
10. The I.O. in this case is PW-7 Sri Jitu Moni Deka, who had deposed that on receiving a verbal information from the PW-1 on 28.03.2017 at about 11 a.m. that the accused had killed his sister Kalpana Das, he made GD Entry No.616 dated 28.03.2017 and proceeded to the place of occurrence i.e. Railway Colony, Rangapara where he found the deadbody of the deceased lying inside the room. PW-7 had stated that he had prepared a sketch map of the place of occurrence which is Ext-3. He found the accused in the place of occurrence and apprehended him and brought him to the Police Station for interrogation. The witness had further deposed that Executive Magistrate, Surjya Kamal Borah, had conducted the inquest on the dead body in presence of witnesses including him and injuries on the neck and forehead were seen over the dead body. Ext-4 is the inquest report and Ext-4(1) was his signature.
11. The PW-7 had also categorically deposed to the effect that PW-3 Sobha Das had stated before him that “on 28.03.17 in the morning when she was in the bathroom, accused Sanjay and Kalpana started quarrelling in the veranda and later on Sanjay assaulted Kalpana. When she came and tried to save Kalpana the accused also pushed her and as a result she fell down. The accused killed her daughter by assaulting Kalpana in front of her.” During his cross-examination by the defence, the PW-7 has denied the suggestion that he had not recorded the statement of PW -3 and that the PW-3 had not stated before him that “on 28.03.17 in the morning when she was in the bathroom, accused Sanjay and Kalpana started quarrelling in the veranda and later on Sanjay assaulted Kalpana. When she came and tried to save Kalpana the accused also pushed her and as a result she fell down. The accused killed her daughter by assaulting Kalpana in front of her.”
12. The accused/appellant did not adduce any evidence but in his examination under section 313 Cr.P.C. he has denied his involvement by stating that the evidence brought against him was all false.
13. We have heard Mr. H. Gupta, learned Amicus Curiae, appearing for the appellant. We have also heard Mr. M. Phukan, learned Addl. Public Prosecutor, Assam, appearing for the State. The respondent No. 2 did not appear despite service of notice.
14. The learned counsel for the appellant has argued that the PW-3, who was cited as an eyewitness, having been declared hostile, there is no eye-witness to the incident. By referring to the testimony of other witnesses, Mr. Gupta has submitted that the evidence adduced by those witnesses are all hearsay evidence and therefore, would not have any probative value in establishing the charge brought against the appellant. Urging that the prosecution has failed to establish the charge beyond all reasonable doubt Mr. Gupta has prayed for acquittal of his client. In support of his arguments, the learned counsel has placed reliance on a decision of the Hon’ble Supreme Court in the case of V.K. Mishra and another Vs. State of Uttarakhand and another reported in (2015)9 SCC 588.
15. From the post-mortem report Ext-3 and the testimony of the doctor PW-5, it is established beyond doubt that the deceased had suffered a homicidal death. Save and except the PW-3 there is no other witness to the occurrence. Since the PW-3 was declared as a hostile witness, the core question that would arise in this case is as to whether, the testimony of PW-3 can at all be relied upon by the Court for convicting the appellant?
16. We have noted here-in-above that the witnesses PWs-1 and 4 have categorically deposed before the Court that they have found the deadbody of Kalpana in her house and had noticed injuries in the back of the body. PW-4 had stated that the accused had confessed in her presence that he had killed his sister. The testimony has remained un-impeached.
17. The PW-3, though declared hostile, had confirmed the fact that the incident took place in the morning of 28.03.2017 in their house and that there was altercation between her son i.e. the appellant and the victim Kalpana. Therefore, there can be no doubt about the fact that the incident took place in the house of the accused in the morning of 28.03.2017.
18. Further, from the evidence brought on record we find that apart from the deceased Kalpana, the appellant and her mother PW-3 were the only other persons present at home on the day of occurrence. Since there is no charge brought against PW-3, hence, the only other person who could have assaulted the victim has to be the appellant in this case.
19. Coming to the testimony of PW-3, it is the case of the prosecution that she is an eye witness and in her statement recorded under section 161Cr.P.C, PW-3 had described the incident that had led to the death of the deceased. Her statement made before the police was reduced in writing. However, in her deposition before the court, PW-3 had not supported the prosecution case and hence, was declared hostile.
20. Section 145 of the Evidence Act provides that a witness may be cross-examined as to the previous statements made by him in writing or reduced into writing. Section 145 of the Evidence Act is quoted herein below for ready reference:
“145. Cross-examination as to previous statements in writing.- A witness may be crossexamined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
21. While interpreting Section 145 of the Evidence Act, the Supreme Court had made the following observations in the case of V. K. Mishra and another (supra):
“19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction; it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction.”
22. In the present case, as noted above, the witness PW-3, who was declared as a hostile witness, was confronted with that part of her statement recorded under Section 161 Cr.P.C. and in this manner the prosecution had brought her statement on record. The fact that the attention of the witness was drawn to that part of her statement is apparent from her deposition but she has denied having made such statement before the police.
23. When the IO (PW-7) was examined before the court, his attention was drawn to the passage marked for contradiction of the witness (PW-3) and by referring to the quoted statement made by the PW-3 before the police, PW-7 has confirmed that the PW-3 had in fact stated before him that “on 28.03.17 in the morning when she was in the bathroom, accused Sanjay and Kalpana started quarrelling in the veranda and later on Sanjay assaulted Kalpana. When she came and tried to save Kalpana the accused also pushed her and as a result she fell down. The accused killed her daughter by assaulting Kalpana in front of her.” During the cross-examination of the I.O.(PW-7) he has denied the suggestion that the PW-3 had not stated before him that “on 28.03.17 in the morning when she was in the bathroom, accused Sanjay and Kalpana started quarrelling in the veranda and later on Sanjay assaulted Kalpana. When she came and tried to save Kalpana the accused also pushed her and as a result she fell down. The accused killed her daughter by assaulting Kalpana in front of her.”
24. In view of the law laid down in the case of V. K. Mishra and another (supra) we are of the opinion that the IO had duly proved the statement made by the PW-3 before the police.
25. The statement of the witness PW-3 made before the police having been held to have been proved by the IO, the PW-3 must be held to be an eye witness to the incident. It appears that having stated the truth before the police, the witness had later on tried to shield her son i.e. the accused and that is why, she had disowned her previous statement recorded under section 161 of the Cr.P.C. Since thePW-3 was an eye-witness to the incident hence, and her testimony, in the facts and circumstances of the case, would not only be relevant but also sufficient to convict the appellant for causing homicidal death to Kalpana Das.
26. Apart from the evidence of PW-3, the testimony of PWs 1, 2 and 4 to 7 also establishes the circumstances which clearly points towards the guilt of the appellant thereby excluding every possible hypothesis except the one proved. The evidence adduced by the aforesaid witnesses not only go to show that the deceased had suffered a homicidal death but the same also establishes the fact that it was the appellant who had assaulted and fatally injured his deceased sister on the day of occurrence. The chain of evidence is so complete in this case so as not to leave any doubt in the mind of this court that the charge brought against the appellant has been proved beyond all reasonable doubt.
27. Having held as above, we have also noticed that the assault made to the victim was preceded by a quarrel between the accused and the victim. The witness PW-1 had stated that the accused had told the
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police in his presence that he had killed his sister out of anger. The testimony of PW-3 also shows that there was a quarrel between the brother and the sister before the occurrence. 28. It appears from the materials on record that the appellant and his mother i.e. PW-3 had raised objection to the deceased returning home late at night without proper justification and in all probability, such conduct on the part of the deceased had triggered a quarrel between the brother and the sister which had prompted the accused to make physically assault on the victim. Therefore, the factum of a quarrel having preceded the assault on the victim is established from the evidence on record. 29. Having regard to the sensitive nature of the issue around which the quarrel had cantered, it cannot be denied that on such occasions emotions would run very high. We are, therefore, of the view that the assault made by the accused which had resulted into the death of his elder sister was the outcome of grave and sudden provocation arising out of the quarrel for it is not possible for this Court to comprehend that a brother would grievously assault his sister unless there was grave provocation exceeding the limits of self -control on the part of the accused. 30. For the reasons stated herein above, we are of the view that the present is a fit case where the conviction of the appellant should be converted from section 302 of the IPC to Section 304 Part-II of the IPC. Ordered accordingly. The sentence imposed upon the appellant is, therefore, reduced to rigorous imprisonment for 5(five) years. However, the fine imposed by the learned trial court shall remain unaltered. The period of detention already undergone by the appellant shall be set off as per section 428 Cr.P.C. The appeal stands allowed to the extent indicated above. Send back the LCR.<