Amogi vs The State

Rathnakala, J.—This Appeal is filed by the accused against the judgment of conviction dated 3rd December 2010 passed in Sessions Case No. 186/2009 by the Fast Track Court-I/II, Bijapur. Case of the prosecution briefly stated is, ''the complainant Laxmibai is the mother of the accused Amogi. Complainant, her husband/deceased and her three sons including the accused were residing under one roof. They are shepherds. The deceased Sayappa used to stay in the house and was given to alcohol: in his intoxicated condition, he used to abuse and assault his wife and children. Though his sons advised him many times not to consume alcohol, he did not heed to their advice. On 6.6.2009, the sons had gone to graze the sheep. Complainant alone was in the kitchen. The eldest son/accused Amogi came home in the middle of his work: at that time, the deceased was sitting in front of the house, he was drunk. On seeing the accused, he started shouting at him. Immediately, the accused reciprocated by throwing his axe towards the deceased, which hit the head of the deceased. There was severe bleeding. The deceased collapsed. The complainant started shouting immediately. The brother of the deceased and inmates of their house came there. By that time, the deceased had breathed his last. The incident occurred at about 6.00 p.m.: the complainant informed the matter to the elders in the locality. On their advice, she lodged the complaint on the next day afternoon i.e., at 12:30 hours of 7.6.2009.

After investigation, the Investigating Officer filed charge sheet against the accused for the offence punishable u/s 304 of IPC. On committal, the Sessions Court framed charge for the offence punishable u/s 304 of IPC. The accused pleaded not guilty and entered into trial.

To sustain the charges, the prosecution examined 18 witnesses as PWs-1 to 18, marked documents Exs. P1 to P16 and material objects M.Os. 1 to 7. There was no defence evidence. After recording the statements of the accused u/s 313 Cr.P.C., after giving audience to both parties, the Trial court has convicted the accused for the offence punishable u/s 304 of the Indian Penal Code. After hearing on quantum of sentence, he was sentenced to undergo simple imprisonment for ten years.

Sri. Nandakishore Boob, learned Counsel appearing for the appellant submits that, absolutely there was no evidence before the Sessions Court to convict the accused for the offence punishable u/s 304 IPC, including complainant, all the material witnesses turned hostile. Barring the evidence of the official witness/Investigating Officer, there was nothing incriminating against the accused. The reason assigned by the trial court to reach its conclusion is arbitrary and non-judicious. The learned Sessions Judge has acted on the basis of the voluntary statement of the accused leading to recovery and the medical evidence, which by itself is not sufficient to fasten the liability of the offence against the accused. The judgment of the trial court is infirm, not legal and deserves to be set aside.

In reply, Sri. S.S. Aspalli, learned Government Pleader submits that, though the material witnesses have turned hostile, there is sufficient evidence on record to show the presence of the accused at the place of incident. The weapon used for the commission of the offence is recovered at the instance of the accused. The witnesses turning hostile having become menace of the day, it is permissible for the court to act on the sole evidence of the Police Inspector. The weapon/axe seized under recovery mahazar is examined by the Doctor and the link between the injury on the skull of the dead body and the weapon seized under mahazar is established by the opinion of the Doctor. Admittedly, this being a homicidal death, the accused, who alone was at the spot, was under statutory obligation as envisaged u/s 106 of the Evidence Act, to explain the circumstance, which he fails to do so. Under the circumstance, the judgment of conviction is justified.

Having heard both parties and having gone through the impugned judgment with the case records of the lower court, the following point arises for my consideration:

Whether the impugned judgment is not legal and calls for interference?

During trial, the witnesses examined are - PW-1/mother of the deceased/complainant, PWs-2 and 3/witnesses to the inquest mahazar and spot mahazar, PWs-4 and 5/witnesses to the seizure mahazar drawn in respect of the seizure of bloodstained cloths of the deceased and also the recovery mahazar, PWs-6 and 7/brothers of the deceased and PWs-8 to 10/the independent witnesses from the neighbourhood. All of them turned hostile to prosecution case. PWs-11 and 12 are the Police Constables. PW-11 submitted the seized article to FSL. PW-12 produced the bloodstained cloths of the deceased after postmortem before the Investigating Officer. PW-13 is the Doctor, who conducted postmortem and gave postmortem report/Ex. P11. He stated that, if a person is assaulted with the axe/M.O. 7, fatal injuries as mentioned in his postmortem report are possible. During cross-examination, he admits that, such injuries are possible by assault with a sharp stone. PW-14 is the Police Constable, who took the photos of the deceased. PW-15 is the then in-charge CPI, who took over further investigation, incorporated the reports and submitted charge sheet to the court. PW-16 is the PWD Engineer, who prepared the sketch of scene of occurrence. PW-17 is the PSI, who received the complaint on 7.6.2009 at 12.30 p.m. and submitted FIR to the court. PW-18 is the Inspector, who took over the investigation. As per his statement, he arrested the accused on 9.6.2009, recorded his voluntary statement in the presence of two panch witnesses: the accused led the Police and panchas near his house and produced an axe from a bag and he seized the same and incorporated in his property form. The evidence of the Investigating Officer is that voluntary statement was given by the accused and thereafter the accused lead the Police and panchas near his house and produced an axe from a bag. Except this piece of evidence, there is nothing incriminating on record against the accused.

In the body of the judgment, the Sessions Judge records a wavering and inconsistent reasoning. His flow of thoughts is irrational. Over and again he reiterates the prosecution case. On his own, he imagines a scenario of confrontation between the deceased and the accused at the alleged place and time. At one stage, he holds that in order to eliminate the father, the accused threw the axe towards his father and thereby committed murder of his father. At another stage, he puts the onus on the accused u/s 106 of the Evidence Act to prove by way of evidence that he has not committed any offence. The ignorance of the judicial officer about basics of Criminal Jurisprudence is glaring from this judgment. Contrary to the fundamental principles of the Evidence Act, he relies on the voluntary statement of the accused as an admission of guilt.

Contrary to the established procedure and principles, the entire voluntary statement of the accused is marked as Ex. P16. Ex. P16 on which the Presiding Officer founded his theory of guilt is hit by Section 26 of the Evidence Act, which reads as under:

Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

The Sessions Judge could not have bypassed Section 27 of the Evidence Act, which reads as under:

How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

For the application of Section 27 of the Evidence Act, the voluntary statement of the accused must be split into its components to separate the admissible portion. Only those components or portions which were the immediate cause of the discovery would be legal evidence and the remaining of the statement is liable to be rejected. That is the firm position of law.

Finally at the fag end of appreciation of evidence, he reaches to the conclusion, "......the accused got frustrated because of the behaviour of his own father and suddenly he provoked and thrown Axe to his father and thereby the deceased died on the spot". Accordingly, the case is brought to the fold of Section 304 of IPC. It is the established practice that during the evidence of Investigating Officer though he produces the recorded voluntary statement of the accused, which includes both admissible and inadmissible averments, the admissible portion only will be marked as Exhibit. But such portion of admissible voluntary statement is not recorded during the evidence of the Investigating Officer as observed in the preceding para. Instead entire statement Ex. P16 were marked. The axe is said to have been recovered at the instance of accused but the link between the said axe and the crime is not established. Despite all the material witnesses had turned hostile to the prosecution case, the Sessions Judge fell to serious error in recording the order of conviction on presumption and assumption contrary to the elementary principles of Criminal Jurisprudence. In that view of the matter, the impugned judgment has resulted in miscarriage of justice and cannot be sustained.

Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence dated 3rd December 2010 passed by the Fast Track Court-I/II, Bijapur, in Sessions Case No. 186/2009, in convicting the accused for the offences punishable under Sections 304 and 308 of IPC, is hereby set aside. The appellant/accused is acquitted of the said charges. His bail bond stands discharged.