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Judgment
(R. Phukan, J)
Heard Mr. Joshep L. Renthlei, learned Amicus Curie for the appellant; Mrs. Vanneihsiami, Addl. P.P. for the State respondent.
This appeal, under Section 415 of the Bharatiya Nagarik Surakshya Sanhita 2023 (BNSS herein after), is directed against the judgment and order of conviction and sentence, dated 22.10.2024, passed by the learned Fast Track Special Judge, Kolasib (trial court hereinafter), in Sessions Case (K) No. 09/2021, corresponding to Kawnpui P.S. Case No. 16/2020.
It is to be noted here that vide impugned judgment and order dated 22.10.2024, the learned trial court had convicted the appellant herein, under Section 304 of the Indian Penal Code (IPC hereinafter) and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs. 5,000/ (Rs. Five Thousand) with default stipulation and further directed that the period, which he had spent in the judicial custody, shall be set off from the total period of sentence.
Background Facts:-
The background facts, leading to filing of the present appeal, are adumbrated herein below:-
“The appellant herein and the deceased were step brothers. On 10.11.2020, the deceased scolded the appellant in connection with a vessel used for preparation of food of pig. The deceased shouted in anger and he asked the appellant to take out one of the beds from their house. And the appellant took it out with the help of his mother. Then the deceased beat up the appellant and continued to do so till the appellant fell on the ground. Though his parents told the deceased to stop and even scolded him but he did not pay any heed. He threatened to shoot the appellant with a gun, and as his father told him not to answer the deceased back, then he decided to keep quiet obeying his father. After that incident, the appellant watched TV at the house of Lallianmawia, after his morning meal. Thereafter, he went home to eat his afternoon meal and he even had to take painkiller for the headache that he had on account of his brother's physical abuse. Then he found his brother was snoring in bed. When he heard the appellant’s sound, he turned his body and he stopped snoring. He found that his brother must have heard his excuse and he threatened to shoot him as he got up to get the gun that was placed at the rear end of the bed. The appellant then shoved him with his left elbow, just as he was about to get up and since he was scared that his brother would actually shoot him, he aimed for the nearby axe, that they used to place on the door wards of the bathroom, and without any second thought, he thrust the blunt side of the axe on the left temple of his brother’s head, who was still lying down on the bed. There was a protruding steel structure on the head of the axe and for this reason, he hurt his brother more than he actually intended. As a result of the assault, his brother died instantaneously on the spot.
On the same day Mrs. Lalbiakngheti, (47) W/o Vanlalpeka, resident of Venglai, Lungmuat village, who happened to be the sister of the appellant and the deceased, filed one first information report (FIR) with the Officer-in-Charge Kawnpui Police Station, upon which Kawnpui police station Case No. 16/2020, dated 10.11.2020, under Section 302 IPC was registered and one Mrs. Zorammawii, Sub-Inspector (SI) of Police, of Kawnpui P.S. was endorsed to carry out the investigation.
During the course of investigation, the investigating officer, (I.O.) had visited the place of occurrence, examined the witnesses and prepared sketch map, collected and seized blood samples of the deceased and weapon of offence, i.e. an axe, stained with blood and also seized bed-sheet stained with blood, held inquest over the dead body, and thereafter, sent the dead body to Medical Officer, Lungdai PHC for post mortem examination. The I.O. then sent the appellant to medical officer, 1st IR Battalion Hqrs, Mualvum for medical examination due to absence of medical officer at Kawnpui PHC. The I.O. then collected finger print of the accused. Thereafter, the I.O had arrested the appellant herein and forwarded him to the court and got his confessional statement recorded under Section 164 Cr.P.C. Then on completion of investigation, and having found the case well established against the appellant, the I.O. laid charge sheet, against him, before the court of learned Chief Judicial Magistrate, Kolasib, to stand trial under Section 302 IPC. Then the learned Chief Judicial Magistrate, Kolasib, complied with the provision of Section 208 Cr.PC, 1973 by furnishing copies to the appellant, and thereafter, committed the case to the court of learned Judge, Fast Track Court under Section 209 Cr PC. Then the learned trial court had appointed Mr. Joseph. L. Pachuau, a defence panel member, to defend the appellant during trial, as per Section 304 Cr.PC, as the appellant could not engage an Advocate at his own costs. Thereafter, hearing learned counsel for both the parties, the learned trial court had framed charge on 26.08.2021, under one head, under Section 302 IPC, against the appellant as under:-
“That you, on 10.11.2020 at @ 1:15 pm, assaulted and murdered your elder brother Sh.Lalrammawia by hitting him on his head several times with an axe while he was sleeping on his bed and you thereby committed an offence punishable under Section 302 IPC within the cognizance of this court.” And on being read over and explained over the same to the appellant, he pleaded not guilty and claimed to be tried. Thereafter, the learned trial court had examined as many as 15 witnesses of the prosecution side, including the M.O. and I.O. Thereafter it had examined the appellant under Section 313 Cr.P.C. The appellant had adduced no evidence in his defence. Thereafter, hearing arguments of learned counsel for both the parties, the learned trial court had convicted the appellant and sentenced him as aforesaid.”
Being highly aggrieved, the appellant has preferred the present appeal challenging the impugned judgment and order of conviction and sentence from jail. The only ground taken by him in his application addressed to Hon’ble the Chief Justice from jail is that in the case of Mr.Tu-nsianmuanga Vs State of Mizoram, Case No. Crl.A/40/2023, vide order dated 21.11.2024, this court had held that "the present appeal is therefore allowed and the impugned judgment Dt.18.07.2023, passed by the learned Court of Additional District and Sessions Judge, Champhai Judicial District, Mizoram in SR No.53/2021 A/o Crl.Tr.No. 137/22021, convicting the appelant under section 302 of IPC and sentencing him for Life imprisonment, is hereby modified to the Tu-nsianmuanga, under section 304 Part-II of IPC and sentencing him to undergo rigorous imprisonment for a period of 8(eight) years. The fine amount and default stipulation imposed by the trial court shall remain the same", and that similar benefit may be granted to the appellant herein also by modifying the conviction under Section 304 IPC to 304(II) IPC as he has assaulted the deceased in his defence.
It is to be noted here that the appellant herein could not engage an Advocate for his defence, for which Mr. Joshep L. Renthlei, is appointed as Amicus Curie for the appellant.
Submissions of learned Amicus Curie:-
Mr. Joshep L. Renthlei, learned Amicus Curie submitted that there is no eye witness to the occurrence and the entire prosecution case is based on circumstantial evidence only. He also submitted that in a case based on circumstantial evidence, the chain of circumstances has to establish the hypothesis of guilt of the accused leading to an inescapable conclusion that the accused is the assailant of the deceased, and the said conclusion is incompatible with any possibility of his innocence. In support of his submission, he has referred to a decision of Hon’ble Supreme Court in the case of Reena Hazarika vs. State of Assam reported in AIR 2018 SC 5361. He also submitted that going by the circumstances relied upon by the prosecution side in the case in hand, it cannot be said that innocence of the appellant is incompatible with the guilt of the appellant.
Referring to another decision of Hon’ble Supreme Court in Govindan vs. State represented by the Deputy Superintendent of Police reported in MANU/SC/1284/2021, the learned Amicus Curie submited that since the appellant had committed the offence under provocation and also under self defence, the conviction of the appellant may be converted to Section 304 (II) IPC and the sentence may be modified to the period already undergone.
The learned Amicus Curie, referred to another decision of a Co-ordinate Bench of this court, in Mr. Tu-nsianmuanga Vs. State of Mizoram, Case No. Crl. A/40/2023, to contend that in the said case, vide order dated 21.11.2024, conviction of the appellant therein, under Section 302 IPC, was converted to Section 304 (II) IPC, and the sentence was modified to 8 years only, and in the case in hand, under the given factual scenario, he has contended to extend similar benefit to the present appellant also and to allow the appeal to the said extent.
Submissions of learned Addl. P.P.
Per contra, the learned Addl. P.P. has supported the impugned judgment and order of conviction. She submitted that the prosecution side has succeeded in bringing home the charge under Section 304 IPC beyond all reasonable doubt. She further submitted that given the nature of injuries inflicted upon the deceased, the appellant herein deserves no leniency and he has rightly been sentenced to undergo life imprisonment. Therefore, she has contended to dismiss the appeal.
Discussion and analysis:-
Having heard the submissions of learned counsel for both the parties, we have carefully perused the record of the learned court below and also gone through the impugned judgment and order and also gone through the decisions referred by learned Amicus Curie.
It is worth mentioning in this context that in the case of Richhpal Singh Meena v. Ghasi @ Ghisa and Ors., reported in (2014) 8 SCC 918, Hon’ble Supreme Court has held that in order to determine the appropriate offence, five step enquiry has to be carried out. The relevant para of the said decision are extracted herein below:-
“35.Having considered all the decisions cited before us (and perhaps there are many more on the subject but not cited), in our opinion, a five-step inquiry is necessary: (i) Is there a homicide? (ii) If yes, is it a culpable homicide or a “not-culpable homicide”? (iii) If it is a culpable homicide, is the offence one of culpable homicide amounting to murder (Section 300 IPC) or is it a culpable homicide not amounting to murder (Section 304 IPC)? (iv) If it is a “not-culpable homicide” then a case under Section 304-A IPC is made out.
(v)If it is not possible to identify the person who has committed the homicide, the provisions of Section 72 IPC may be invoked. Since this five-pronged exercise has apparently been missed out in the first category of decisions, the learned amicus was of the opinion that those decisions require reconsideration.
36.In our view none of the decisions require any reconsideration. The position in law is as we have culled out from the cases cited before us making it clear that in most cases the person who has committed homicide (culpable or not culpable) can be identified. But it is quite possible in some cases, such as in Ninaji Raoji Boudha (1976) 2 SCC 117 and Ram Lal (1973) 3 SCC 466 that conclusive or specific evidence is lacking to actually pin down the person who has committed homicide (culpable or not culpable). In such cases, the accused would have to be given the benefit of Section 72 IPC. Such cases arise if the investigation is defective or if the evidence is insufficient. But where it is possible to ascertain who is responsible for the homicide, the five-step inquiry can easily be carried out.”
In this case, it is not in dispute that the victim, namely, Lalrammawia, suffered demise on 10.11.2020. Now, in order to carry out the five step inquiry, as stated in the case of Richhpal Singh Meena (supra) we have to address the following issues:-
Whether death of Lalrammawia is natural or suicidal or homicidal in nature?
If it is homicidal, then whether it is culpable homicide or not culpable homicide?
If it is culpable homicide, then is the offence amounting to murder (Section 300 IPC) or not amounting to murder (Section 304 IPC)?
If it is a ‘not-culpable homicide then whether a case under Section 304-A IPC is made out.
Is it possible to identify the person, who has committed the homicide?
Now, we will address the first issue, i.e. whether death of Lalrammawia is natural or suicidal or homicidal in nature.
Before a discussion is directed, it would be relevant to mention herein that the prosecution side, as stated herein above, had examined as many as 15 witnesses to bring home the charge against the appellant herein. This is apparent from the Appendix of the impugned judgment. But, in fact going by the record of the learned trial court we could not trace out the evidence of P.W. 2, 3, 11 and 12. Also there was no discussion and reference in the impugned judgment about the evidence of aforesaid witnesses.
Be that as it may, to deal with the first issue, the evidence of the Doctor(P.W.-10) and the I.O.(P.W.15) are found to be most relevant. The evidence of the I.O. reveals that having conducted inquest on the dead boy of the deceased, she had sent the same for post mortem examination, to the Medical Officer, Lungdai PHC, where Ms (Dr.) Dian Lianhlupuii(P.W.10) had conducted post mortem examination.
The evidence of P.W.10 reveals that while conducting post mortem examination over the dead body, she found the following injuries:-
Laceration injury of 4x4x2 cm in temporal lobe,
Laceration injury of 6x6x3 cm in left orbital region,
Laceration in nasal bridge (3x2x1 cm)
Laceration injury of 7 x 3 x 2 cm in mandible region
Laceration injury of 2x1x1 cm in left zygomatic region
Laceration injury of 4x2x1 cm in inferior occipital region,
Laceration injury of 2x1x1 cm in posterior right ear, (viii) Laceration injury of 4x2x2 cm in posterior left ear and (ix) Laceration injuries of 2x1x1 cm in posterior upper neck.
Besides above injuries, she had also found multiple wounds and bruises throughout his body, the most severe being deep lacerated wound on left orbital region of 6x6x3 cm, with intrusion of the whole left eyeball, and deep lacerated wound on the left temporal lobe, with a size of 4x4x2 cm along with expulsion of brain matter.
P.W.10 opined that the most probable cause of death appeared to be extensive injury to the left orbital region and left temporal lobe causing massive hemorrhagic shock. She further opined that the injuries the deceased suffered were not that of accident or suicidal, but inflicted by some other person-using weapon. P.W.10 had confirmed Exhibit P-IX, the post mortem report, and Exhibit P-IX(a), her signature thereon.
Her evidence also reveals that before conducting post mortem examination on the dead body of the deceased, she interrogated relatives of the deceased, who stated that the victim was killed by accused Lalthakima, a step-brother of the deceased.
The appellant had cross-examined the P.W.10. But, nothing tangible could be elicited to discredit her evidence. However, it is elicited that relative of the deceased, whom she had interrogated was uncle of the deceased.
The evidence of the P.W.10, also finds corroboration from the evidence of the P.W.15, and also from Exhibit-P-VIII, the Inquest Report. The evidence of P.W.15 reveals that she conducted inquest over the dead body of the deceased and she found injuries of laceration of 2 inches long on bridge of nose, left eye broken, laceration injuries of around 3 inches on left temple, laceration of 1 inch below the left ear, 2 inches long of laceration on upper left and front of left ear with certain portion of skull bones spread out from left temple. The inquest over the dead body was done in presence of civilian witnesses.
Thus, we find that the evidence of P.W.10 and P.W.15 and Exhibit P-IX (a), the P.M. Report and Exhibit-P-VIII, the Inquest Report, goes a long way to show that the deceased suffered as many as 9 injuries, as discussed in paragraph No.11.3 above, and besides above injuries, the deceased got multiple wounds and bruises throughout his body, the most severe being deep lacerated wound on left orbital region of 6x6x3 cm with intrusion the whole left eyeball and deep lacerated wound on the left temporal lobe with a size of 4x4x2 cm along with expulsion of brain matter. And the most probable cause of death was the extensive injury to the left orbital region and left temporal lobe, causing massive hemorrhagic shock.
And according to the P.W.10, the injuries, which the deceased suffered, were not that of accidental or suicidal, but inflicted by some other person-using weapon. Thus, we find that the death of deceased Lalrammawia was neither natural nor suicidal, but, homicidal, in nature. It is worth noting herein that the finding so recorded by the P.W.10 is not disputed by the appellant herein.
In view of our finding, in respect of Issue No.(i), that the death of deceased Lalrammawia was homicidal in nature, the answer to the Issue No. (iv), has to be answered in negative. And accordingly, we are inclined to hold that no case under Section 304-A IPC is made out.
Now, moving forward to the next Issues, i.e. (ii) whether is homicide is culpable homicide or not culpable homicide and (iii) if it is culpable homicide then is the same amounting to murder (section-300 IPC) or it is not amounting to murder (Section 304 IPC) and (v) as to who had committed the same. Having gone through the records of the learned trial court we find that admittedly there is no eye witness to the occurrence. The entire prosecution story is based upon circumstantial evidence. To consider the circumstances, which the prosecution side had relied upon to prove the charge against the appellant, it requires scanning of the evidence so brought on record by the prosecution side.
The prosecution side had examined the first informant, Mrs. Lalbiakngheti as the PW-1. She is the sister of the deceased as well as the appellant. Her evidence reveals that on 10.11.2020, at 01:15 PM, while the deceased was sleeping on his bed, the appellant had assaulted and hacked him to death with an axe. Thereafter, she lodged FIR, Exhibit P-1, with Kawnpui Police Station. It is elicited in her cross-examination that she was not present at the place of occurrence when the incident happened. It is also elicited that the accused/appellant and the deceased had an argument before the incident. It is also elicited that the deceased used to consume liquor and that she found the deceased lying dead/motionless, on his bed and then they presumed that he was assaulted by the accused/appellant.
The prosecution side had examined the President, Village Council/Court of Lungmuat village, namely, H. Lalfakawma, as PW-4. His evidence reveals that on 10.11.2020, S.I. Zorammawii (P.W.15) had recorded disclosure statement of the appellant inside his house in his presence, wherein he stated that he struck his elder brother/the deceased, several times with an axe, while he was sleeping and because of the assault, the deceased succumbed to the injuries on the spot. He confirmed his signature over the disclosure statement - Exhibit P-VII. It is elicited in his cross-examination that in his opinion, the accused intentionally killed his brother/the deceased.
PW-5 is Mr. R. Vanlalruata, who testified that on 10.11.2020, while SI Zorammawii had recorded the disclosure statement, Exhibit P-VII, of the accused/appellant inside the house of PW-4, then he was also present there. He testified that the accused/appellant confessed about killing of his own brother while he was sleeping on his bed and the deceased died instantaneously. He also put his signature, Exhibit P-VII(a), over the same. It is elicited in cross-examination that he assisted the police as a witness on request made by the police and further he stated that he did not know if the accused/appellant had intention to kill his own brother.
The prosecution side had examined one Mr. Pahlira as PW-6, who testified that he was quite familiar with the family of the accused/appellant since the days of their great grandfathers. The accused/appellant and the deceased were brothers-(same father, but of different mothers). He also testified that he used to employ the deceased victim, before as his private driver. Earlier, he heard about rumour that the accused/appellant had tried to kill the deceased. Then hearing about the incident, he rushed to the place of occurrence and saw the axe, with which the appellant had hit his brother, stained with blood, and the same was there near the partition door. It is elicited in his cross-examination that he heard from the friends of the appellant that the accused/appellant had once enquired from his friends about the most vital part of human body, to kill.
The prosecution side had examined one Lalhmelthaa as PW-7, who testified that he assisted the police as a witness while collecting blood samples from the deceased and an axe stained with blood, short pant of light green colour, blood stained bed-sheet (floral) from the place of occurrence. And being witness, he put his signature on the copy of seizure memo, Exhibit P-V, wherein Exhibit P-V(a) is his signature. It is elicited in cross-examination that he did not know the reason as to why the accused/appellant had killed his own brother.
P.W.8 is C. Lalngaihawma, who testified that on 10.11.2020, @ 4:15 pm, Kawnpui Police seized the dry blood sample from the victim collected from the P.O, the axe suspected to be with blood stain, and victim's blood stained short pant (light green colour) and blood stained bed sheet (floral) from the residence of Chawnghlira (father of both the victim and the accused) at Lungmuat. His evidence also reveals that he was present when the seizure was made and put his signature, Exhibit P-V(b), on the seizure memo, Exhibit P-V. It is elicited in his cross-examination that he does not know the reason why the accused had killed the deceased.
P.W. 9 is Shri Lalrorelkima, who is also a seizure witness. His evidence also reveals that in the evening of 10.11.2020, Kawnpui police came to Lungmuat Village (the P.O) and in their presence police seized the blood stained vest (dark grey colour), blood stained trouser (dark grey colour) and blood stained jumper sweater(dark grey colour) worn by the accused/appellant at the time of the commission of the offence. The accused/appellant was wearing the vest and trouser at the time of seizure. He was present there when the seizure was made and he put his signature, Exhibit P VI (b) over the seizure memo, Exhibit P VI. His cross-examination reveals that he is the relative of the accused and that he was not present at the time of the incident. It is also elicited that accused/appellant Latthakima intentionally killed his brother.
Further, the evidence of PW-15 reveals that during investigation, she had collected and seized blood samples of the victim and weapon of offence, i.e. an axe, stained with blood and also seized bed-sheet stained with blood and sent them for FSL examination. She had recorded disclosure statement of the accused in presence of civilian witness. Then she had also sent the accused to the learned Chief Judicial Magistrate, Kolasib for the recording of his confessional statement.
P.W. 14 is Shri Vincent Lalrokima, Chief Judicial Magistrate (CJM), District Court, Kolasib, who had recorded the confessional statement of the accused/appellant. His evidence reveals that on 18.11.2020, @ 11:30 am, Lalthakima, an accused in Kawnpui P/S Case No 16/20, u/s 302 IPC, was brought before him for recording his confessional statement. Then giving him about an hour time for reflection, and at @ 12:30 pm he had recorded his confessional statement having been satisfied that his confessional statement is voluntary. He confirmed the confessional statement, Exhibit -P-II. It is elicited in his cross-examination that he had given him enough time for reflection and that as per his observation the confessional statement given by the accused seems to be true.
The English translation of the confessional statement of the accused/appellant is extracted herein below for proper appreciation of the issue in question.
“On 09.11.2020, I went to the house of C. Lalremruata Buanga. We frequent this house day and night. As their pot for cooking pig food was small, I advice them to use my big vessel saying that they will pay me the vessel cost once they harvest their rice.
The next day i.e. on 10.11.2020, my brother scolded me and he tried to take the vessel back. He shouted in anger and he asked us to take out one of the beds from our house. I took it out with the help of my mother. He laid a hand on me, and beat me up. Even after I told him that I do not challenge him. He still continued to beat me up. He kicked me, boxed me and even punched me till I fall to the ground. My parents told him to stop and even scolded him but he did not pay any heed. He threatened to shoot me with a gun and as my father told me to not answer him back, I decided to keep quiet obeying my father.
Post this incident I watched TV at the house of Lallianmawia after my morning meal. I went home to eat my afternoon meal and I even had to take painkiller for the headache that I had on account of my brother's physical abuse. As I took a proper look at the heater that I have repaired earlier, I realise that my brother was snoring in bed. When he heard my sound, he turned his body and his snoring stopped. I intended to collect bamboo that day however I decided to cancel it as I had a terrible headache. It appears that my brother must have heard my excuse and he threatened to shoot me as he got up to get the gun that was placed at the rear end of the bed. I then shoved him with my left elbow just as he was about to get up and since I was scared that he would actually shoot me, I aimed for the nearby axe that we have placed on the door towards the bathroom and without any second thought, I hammered the blunt side of the axe on the left temple of my brother who was still lying down on the bed. There was a protruding steel structure on the hammer head and for this reason, I have hurt my brother more than I actually intended to. My father who was lying down on a bed nearby got up and said that the incident should not have happened remorsefully went to the VCP's house asking him to call the police. He called the police and I stayed at the VCP's residence till the police personnel showed up.
I deeply regret the incident and I had no intention of killing him. The fact that he previously beat me up and with the pain still lingering on, in anger and with him threatening to shoot me with a gun, the whole thing accidentally happened out of anger which I could not control.”
As is evident from the evidence of the I.O. she had sent the seized axe and the wearing apparels of the deceased and the appellant to the Forensic Science Laboratory (FSL) and thereafter, collected the report, Exhibit-P-X. The prosecution side had examined the Asst. Director FSL, Aizawl, namely, Lalchhanzova, as P.W. 13, who testified that on 12.11.2020, they received a parcel containing 10 biological exhibits from the O/C, Kawnpui P.S in connection with Kawnpui Case No. 16/20, dated 11.11.2020, u/s 302 IPC. The exhibits were marked as under:-
Exhibit – A - dried blood sample of the victim, Exhibit – B - axe with suspected blood stain,
Exhibit-C - short pant of the victim with suspected blood stain.
Exhibit- D - bed sheet with suspected blood stain.
Exhibit- E - liquid blood sample of the victim Exhibit- F - dark grey colored vest of the accused with suspected blood stain.
Exhibit- G - trouser of the accused with suspected blood stain.
Exhibit- H - jumper of the accused with suspected blood stain.
Exhibit- I - liquid blood sample of the accused.
Exhibit- J - dried blood sample of the accused.
On examination, he found that exhibits B,C,D,E,F,G,H and I were of male genetic profile. The genetic profile of Exhibits B, C, D and H match with the genetic profile generated from exhibit E i.e. the victim Lalrammawia. And he concluded from that the blood stains from exhibits B, C and D, were that of the victim. Further, the blood stain from exhibits F, G and H were also that of the victim. He confirmed Exhibit P-X, is the FSL report, and his signature -Ext P-X (a), thereon.
Thus, from the aforesaid discussion, it becomes apparent that there is no eye witness to the occurrence. And the entire prosecution case rests upon circumstantial evidence. P.W.1, who had lodged the FIR, had not seen the occurrence. According to her, there was a quarrel between the accused/appellant and the deceased prior to the main occurrence. She had found the deceased lying dead on his bed at 1.15 PM and she presumed that the accused/appellant had killed him. P.W.4 and 5 are the witness of recording disclosure statement of the accused/appellant, recorded by the P.W.15. But, said disclosure statement cannot be treated as disclosure statement under Section 27 of the Evidence Act, as nothing has been discovered pursuant to such statement of the accused/appellant. And at best the same can be treated as extra-judicial confession. But, the same is also not admissible in evidence, being the same made before a police officer, in view of the bar of Section 25 of the Evidence Act. The evidence of P.W. 6 is hearsay and the P.W. 7, 8 and 9 are the seizure witnesses. They have not seen the occurrence. P.W.13 is the FSL Expert who had examined the exhibits and furnished his report Exhibit- P-X. But unfortunately, the learned trial court had deferred his cross-examination on 13.05.2024. But, the learned trial court never recalled him for his cross-examination again. That being so, examination in chief of P.W.13, without being tested in cross-examination, cannot be admitted against the accused/appellant.
It is to be noted here that in the impugned judgment the learned trial court had formulated three points for determination as under:-
Whether the accused criminally assaulted and killed the victim on the occasion complained of?
Whether the accused had an intention to kill the deceased or the victim first provoked the accused to commit such offence?
Whether the accused person is liable to be convicted and sentenced under the charged section of law?.
In respect of point No.(i), the learned trial court, after considering the evidence of the prosecution witnesses, had arrived at a conclusion that -“On careful perusal of the evidences on record, this Court finds it safe to conclude that the accused assaulted the deceased with the axe and killed.”
And while deciding the point No.(ii) it had recorded a finding as under:-
“In the present case, no eyewitness was present while the incident took place. The only evidence that revealed about killing of the deceased by the accused was the evidence recorded under Section 164 & 313 Cr. PC. The accused confessed before the learned CJM that he killed the deceased as the deceased attempted to shoot him with gun. The accused pleaded that he killed the deceased only because that the deceased first attempted to shoot him. None of the prosecution witness stated about provocation by the deceased nor none of them saw the accused assaulting the deceased.”
The learned trial court had also recorded a finding as under:-
“But in his evidence before the Court while he was examined by the Court under Section 313 Cr.PC, the accused stated that at the forenoon time before the incident, he and his brother/deceased had a brief quarrel. By that time, the deceased attempted to knock him out of the house. By that moment, his brother/deceased picked up a gun and threatened to shoot him.
After the tension of the quarrel was a little bit subsided, the deceased was lying down on his bed but still in the mood of assaulting him. Sensing his inimical intention and in order to take private defence, he (accused) picked up an object which he thought it to be a stick of his father, with that object he struck the deceased for times. The object, which he thought to be a stick, was not that a stick but Mizo hreipui (Axe). With that weapon, he killed his brother by striking him on his head. The deceased died instantaneously on the bed. As per evidence on record the victim suffered multiple wounds and bruises throughout his body, the most severe being deep lacerated wound on left orbital region of 6x6x3 cm with intrusion the whole left eyeball and deep lacerated wound on the left temporal lobe with a size of 4x4x2 cm along with expulsion of brain matter. In the opinion of the medical officer, the most probable cause of death appeared to be extensive injury to the left orbital region and left temporal lobe causing massive hemorrhagic shock. She further stated that the injuries the deceased suffered were not that of accident or suicidal but inflicted by some other person-using weapon. Though the evidence of the Doctor clearly revealed that the deceased met his last from being assaulted by a person-using weapon, but no one had seen who the assaulter was. No eyewitnesses were there. The prosecution failed to prove intention and pre-meditation on the part of the accused. Moreover, no one saw the accused assaulting the deceased. The accused pleaded that it was rightly private defence as his brother was much stronger and bigger than he was. Moreover, he pleaded that he had a little quarrel with the deceased in the morning. The deceased tried to knock him out and threatened to shoot with gun. In taking private defence, he struck the deceased with the axe which he actually did not know what it was but thought to be a stick of his father. Due to absence of concrete evidence on the part of the prosecution about intention on the part of the accused, the Court has to conclude that there was no intention and pre-meditation on the part of the accused to kill the deceased.”
In arriving at the said conclusion the learned trial court had also relied upon a decision of Hon’ble Supreme Court in the case of State of Rajasthan vs. Dhool Singh, reported in AIR 2004 SC 126, where in it has held "It is the nature of injury, part of the body where it is caused, the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not.”
Thus, from the aforesaid discussion, it becomes clear that the learned trial court also rightly held that there is no eye witness to the occurrence. Further, from the evidence discussed herein above, the circumstances, which the prosecution side has relied upon can be culled out as under:-
The deceased and the accused appellant were half blood brother and were residing in the same house.
There was a quarrel between the deceased and the appellant in the morning hours on the fateful day, i.e. 10.11.2020.
The deceased was found dead in his bed at 1.15 pm.
The axe, with blood stain, was there near the partition door.
The appellant left for the house of the VCP, P.W.4, to ask him to call police.
The appellant, while he was in the house of P.W.4 made disclosure statement before the I.O., in presence of P.W.4 and 5 admitting murdering the deceased.
The appellant made a confession before the Magistrate under Section 164 Cr.P.C., admitting commission of murder of the deceased.
He also admitted in his examination under Section 313 Cr.P.C., about commission of murder of the deceased.
The I.O. had seized the axe, and also seized vest, trouser, zumper with suspected blood stain of the appellant and the same were sent to the FSL for examination and the FSL report Exhibit-P9(X) (B, F, G, H) indicates that the axe and the vest, trouser and zumper of the appellant contains the blood of the deceased.
Of the 9 circumstances, as enumerated in para No. 15 above, we find that the circumstances, at serial No.(vi), which, as discussed in para No.13 herein above, appears to be an extra judicial confession made before a police officer, without leading to any disclosure, is inadmissible in evidence. Moreover, nothing has been recovered and seized pursuant to such statement of the appellant so as to attract the provision of Section 27 of the Evidence Act. Therefore, we are of the view that the same cannot be relied upon.
Further, in respect of the confessional statement of the appellant, we find that the Magistrate had given only one hour time for reflection to the appellant before recording his confessional statement. But, it is nobody’s case that the said period was not sufficient to overcome the influence of police. There was no cross-examination on this point also. Besides, the appellant had not retracted the confession during his examination under Section 313 Cr.P.C. Rather, he had admitted having assaulted deceased by means of an axe, however, in exercise of his right to private defence. We will deal with the issue as to whether the plea of private defence will be available to him or not in later part of this judgment.
Again, the circumstance No. (ix), which relates to the FSL report, Exhibit-P10(X), we find that though P.W.13, the Assistant Director of FSL, Mizoram had not been called for cross-examination after his examination-in-chief. But, in view of Section 293 Cr.P.C., a report of the Assistant Director of a Forensic Science Laboratory (FSL) can generally be accepted as evidence without the personal examination of the author, subject however, to the court's discretion.
Notably, Section 293 Cr.P.C. deals with reports of certain government scientific experts. It states that a report from a listed expert (upon any matter or thing duly submitted for examination/analysis) may be used as evidence in any inquiry, trial, or proceeding without formal proof. Sub-section (4) explicitly includes:- The Director, Deputy Director, or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory (among others like Chemical Examiners, etc.). The report is treated as a public document and is admissible if it purports to be from such an expert. However, the court may, in its discretion, may summon and examine the expert, but this is not mandatory. The accused does not have an automatic right to insist on cross-examination unless the court finds it necessary for a just decision.
Hon’ble Supreme Court has consistently upheld the admissibility of such FSL reports (including ballistic reports) forwarded under the seal of the Director/Deputy Director/Assistant Director. In the case of Ashok Kumar Chandel v. State of U.P. reported in (2022 SCC OnLine SC 1525), a three Judges bench of Hon’ble Supreme Court held that a ballistic report forwarded by the Assistant Director under the seal is admissible under Section 293 CrPC. In holding so, Hon’ble Supreme Court has relied upon its earlier decision in State of H.P. vs. Mast Ram reported in (2004) 8 SCC 660, to clarify that reports prepared by scientific officers but forwarded/presented under the authority/seal of the listed expert (Director/Deputy/Assistant Director) comply with the section. The trial court's rejection of such a report was erroneous. Said proposition also apply to other FSL reports, such as chemical analysis, DNA report etc. Non-examination of the expert does not render the report inadmissible; the report carries presumptive value, though courts may summon the expert if the report is unclear, challenged on specific grounds, or crucial to the outcome. Under Section 293(2) Cr.P.C. the accused can apply to the court to summon the expert for cross-examination. Mere objection is usually insufficient to mandate summoning.
Notably, in the case of State of H.P. vs. Mast Ram reported in (2004) 8 SCC 660, Hon'ble Apex Court was dealing with the report of Ballistic Expert of Central Forensic Science Laboratory, Chandigarh signed by one Junior Scientific Officer. Dealing with the issue, following observations have been made in para-6 of the report, which reads as under:-
“06.Secondly, the ground on which the High Court has thrown out the prosecution story is the report of ballistic expert. The report of ballistic expert (Ex. P-X) was signed by one junior scientific officer. According to the High Court, a junior scientific officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the Forensic Science Laboratory Report (Ex. P-X) has been submitted under the signatures of a junior scientific officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a Government scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a Government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court has completely over-looked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a junior scientific officer is not an officer enumerated under sub-section 4 of Section 293. What subsection 4 of Section 293 envisages is that the court to accept the documents issued by any of six officers enumerated therein as valid evidence without examining the author of the documents.”
Thus, drawing premises form the illuminating discourse, in the decisions of Hon’ble Supreme Court, we are of the view that under Section 293 Cr.P.C. the report of the P.W.13, Exhibit-P10(X), can be admitted in evidence notwithstanding absence of his cross-examination by the appellant. Moreover, the appellant, nowhere in the appeal had ever taken such a plea.
It is to be noted here that the law with regard to circumstantial evidence is well settled in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, reported in (1984) 4 SCC 116. In the said case Hon’ble Supreme Court has held as under:-
“152.Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh [(1952) 2 SCC 71: AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129]. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi vs. State of Uttar Pradesh [(1969) 3 SCC 198 :1970 SCC (Cri) 55] and Ramgopal v. State of Maharashtra [(1972) 4 SCC 625 : AIR 1972 SC 656] .It may be useful to extract what Mahajan, J. has laid down in Hanumant case [(1952) 2 SCC 71 : AIR 1952 SC 343: 1952 SCR 1091: 1953 Cri LJ 129]:-
“It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:-
(1)the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned “must or should” and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.”
(2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3)the circumstances should be of a conclusive nature and tendency,
(4)they should exclude every possible hypothesis except the one to be proved, and
(5)there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
In the instant case, barring the circumstance at serial No.(vi), rest 8 circumstances, as culled out in paragraph No. 15 above, which have never been disputed and challenged by the appellant, when examined in light of the principles laid down in the case of Sharad Birdhichand Sarda (supra), to our considered opinion, form a complete chain to establish beyond doubt that it was the appellant, who had assaulted the deceased and caused his death. In that view of the matter, the decision of Hon’ble Supreme Court in the case of Reena Hazarika(supra), so referred by learned counsel for the appellant would not advance his argument. rd
It is also to be noted here that while dealing with the 3 point for determination, the learned trial court, in paragraph No.14 of the impugned judgment had held as under:-
“14.Upon considering the submissions of the learned counsels for the rival parties, and on careful perusal of the evidences on record, this Court finds it safe to conclude that the accused killed his brother without pre-meditation and intention and thus concludes to alter the charge section from 302 to 304 IPC. Hence, as per the provision contained under Section 216 Cr.P.C., this Court altered the charge section from 302 to 304 IPC.”
In arriving at such a conclusion the learned trial court also considered the answer given by the appellant in two questions, so put to him, which are extracted herein below:-
Q(i). The evidence against you is that on 10.11.2020 at around 01:15 PM, you assaulted and killed your elder brother-Lalrammawia by striking on his head several times with an axe while he was sleeping on his bed. Is it true?
Ans: Yes. It is true.
Q(ii). What do you have to say regarding the allegation leveled against you?
Ans:- "The deceased was my half brother. He was bigger and stronger than me. On the occasion complained of, he and I had quarrel in the morning. He tried to knock me out of the house. By that moment, he picked a gun up and tried to shoot at me. After the tension was a little bit subsided, he was lying down on his bed. But he still had an intention to kill me. Sensing his intention and in order to take private defense, I pick up an object which I thought a stick belonging to my father, with that object I did strike him for times. The object which I thought it to be a stick of my father was later realised that it was not a stick but was an axe (Mizo hreipui). With that weapon, I did the offence of killing him by striking on his head. He was instantaneously died on the bed. It was rightly a private defense since he was much stronger and bigger than me."
We have considered the finding, so recorded by the learned trial court, in respect of holding that instead of charge under Section 302 IPC, the Charge under Section 304 IPC is established and in altering the same. Before a finding is recorded we deem it appropriate to scrutinize the precedents presently occupying this field.
The notable, amongst the recent precedents, is State of A.P. v. Rayavarapu Punnayya and Anr., reported in (1976) 4 SCC 382, wherein Hon’ble Supreme Court has been held as under:-
“21.From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of “murder” contained in Section 300. If the answer to this question is in the negative the offence would be “culpable homicide not amounting to murder”, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be “culpable homicide not amounting to murder”, punishable under the first part of Section 304, of the Penal Code.”
Another notable recent decision is Anbazhagan v. State represented by the Inspector of Police, reported in (2024) 20 SCC 500, wherein Hon’ble Supreme Court has dealt with the issue as under:-
“66.Few important principles of law discernible from the aforesaid discussion may be summed up thus:
66.1.When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in clauses (1) to (4) of Section 300IPC, the act will be murder even though only a single injury was caused. To illustrate: ‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300IPC. Taking another instance, ‘B’ sneaks into the bedroom of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300IPC and render him guilty of the offence of murder although only single injury was caused.
66.2.Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five Exceptions enumerated in that section. In the event of the case falling within any of those Exceptions the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299IPC, may be attracted but not any of the clauses of Section 300IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within the 3rd part of Section 299 IPC.
66.3.To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is “guilty intention,” whereas the second part would apply when there is no such intention, but there is “guilty knowledge”.
66.4.Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of clause thirdly, to Section 300IPC, are fulfilled and the offence would be murder.
66.5.Section 304 IPC will apply to the following classes of cases:
(i)when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the Exceptions to that section,
(ii)when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300IPC,
(iii)the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
66.6.To put it more succinctly, the difference between the two parts of Section 304IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304IPC, the accused need not bring his case within one of the Exceptions to Section 300IPC.
66.7.The word “likely” means probably and it is distinguished from more “possibly”. When chances of happening are even or greater than its not happening, we may say that the thing will “probably happen”. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
66.8.The distinction between culpable homicide (Section 299 IPC) and murder (Section 300 IPC) has always to be carefully borne in mind while dealing with a charge under Section 302IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five Exceptions to Section 300IPC. But, even though none of the said five Exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300IPC, namely, Firstly to Fourthly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299IPC.
66.9.The court must address itself to the question of mens rea. If clause Thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
66.10.Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
66.11.When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
66.12.Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under clause Thirdly of Section 300IPC unless one of the Exceptions applies.
66.13.In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II IPC.”
We have also gone through the relevant provisions of IPC, i.e. Sections 299, 300, and 304 IPC. Section 299, i.e. Culpable Homicide is attracted when death is caused by an act done with
intention to cause death,
intention to cause bodily injury likely to cause death, or
knowledge that the act is likely to cause death.
Section 300 IPC i.e. Murder is attracted the Culpable homicide meets specific clauses (e.g., intention to cause death, or bodily injury sufficient in the ordinary course of nature to cause death), unless an exception applies e.g., grave and sudden provocation.
Section 304 Part I IPC applies if the act falls under an Exception to Section 300 (e.g., grave and sudden provocation) but intention was present.
Thus, it appears that the foundation for converting a conviction from Section 302 IPC (murder) to Section 304 Part I- IPC (culpable homicide not amounting to murder) revolves around the moot point of absence of the specific intention required for murder under Section 300 IPC, while presence of knowledge that the act is likely to cause death.
A Conversion from Section 300 to Section 304 part I, could be done when evidence reveals that :-
No premeditation.
Act occurred in a sudden quarrel/fight or heat of passion without time for passions to cool.
Single blow or injuries not indicating clear intent to kill (though multiple injuries or use of a deadly weapon may still qualify if intent/knowledge fits Part II).
Provocation, mental state, or circumstances negating full murderous intent.
Now, adverting to the factual scenario of the case in hand, we find from the evidence of the P.W.10, who conducted post mortem examination on the dead body of the deceased, had found as many as nine injuries and most are on the head, which is the vital part of the body. These injuries are already discussed in paragraph No.11.3. above. Again they are reproduced herein below:-
Laceration injury of 4x4x2 cm in temporal lobe,
Laceration injury of 6x6x3 cm in left orbital region,
Laceration in nasal bridge (3x2x1 cm)
Laceration injury of 7 x 3 x 2 cm in mandible region
Laceration injury of 2x1x1 cm in left zygomatic region
Laceration injury of 4x2x1 cm in inferior occipital region,
Laceration injury of 2x1x1 cm in posterior right ear,
Laceration injury of 4x2x2 cm in posterior left ear and
Laceration injuries of 2x1x1 cm in posterior upper neck.
P.W. 10 also found multiple wounds and bruises throughout his body, the most severe being deep lacerated wound on left orbital region of 6x6x3 cm with intrusion the whole left eyeball and deep lacerated wound on the left temporal lobe with a size of 4x4x2 cm along with expulsion of brain matter. And according to her extensive injury to the left orbital region and left temporal lobe causing massive hemorrhagic shock leading to death of the deceased. The evidence of the P.W.15, who had conducted inquest on the dead body and the Inquest Report-Exhibit-P-VIII, also reveals that she found injuries of laceration of 2 inches long on bridge of nose, left eye broken, laceration injuries of around 3 inches on left temple, laceration of 1 inch below the ear, 2 inches long of laceration on upper left and front ear with certain portion of skull bones spread out from left temple.
Indisputably, the injuries were caused by an axe, which is a heavy weapon used to cut logs. And while the injuries were caused the deceased was sleeping on a bed. Though the appellant had taken a plea of private defence as well as provocation also, on account of the quarrel and consequent physical abuse to the appellant by the deceased, yet the quarrel allegedly took place in the morning hours on 10.11.2020, while the appellant killed the deceased at 01:15 PM. In the meantime sufficient time elapsed and he had the time to calm down before committing the act. As such the element of sudden provocation appears to be absent herein this case. Our view gain sustenance from a decision of Hon’ble supreme Court in the case of K.M. Nanavati vs State of Maharashtra reported in AIR 1962 SC 605. Thus, provocation, sudden fight and quarrel and heat of passion is absent herein this case.
Besides, the nature of weapon used and the number of injuries, and that too inflicted upon vital part of the body i.e., clearly shows that the force applied by the appellant undoubtedly disproportionate, excessive and brutal and diabolic, applied to person sleeping on a bed. Moreover, the I.O./P.W.15, during investigation had not seized any such gun, though the appellant had taken such plea. Notably, as per confessional statement of the appellant, the gun was lying on the bed where the deceased was sleeping. Had it been there, the I.O. would have seized the same. Thus, non seizure of the gun by the I.O. weakened the plea of private defence of the appellant. Therefore, the plea of private defence, so taken by the appellant to our considered opinion cannot be accepted.
Rather, it appears that there was element of premeditation, as is apparent from the evidence of P.W.6, who testified that he heard about rumour that the accused/appellant had tried to kill the deceased and the factum that the accused/appellant had once enquired from his friends about the most vital part of human body to kill a person, which he heard from the friends of the appellant, and this was elicited in his cross-examination.
Thus, applying the proposition of law, as discussed in the foregoing para, to the given facts and circumstance of the case in hand, we afraid neither the plea of private defence nor the plea of provocation is attracted herein this case to bring the case of the appellant out of the purview of Section 300 IPC. The formidable weapons used by the appellant in assaulting, the brutal manner of its execution, the helpless state of the unarmed victim, the intensity of the violence caused, all, viewed against the background of previous animosity between the appellant and the deceased, irresistibly lead to the conclusion that the injuries caused by the appellant to the deceased were intentionally inflicted, and the same were not accidental. Thus, the presence of the first element of clause thirdly of Section 300 had been cogently and convincingly established. And in that view of the matter, conviction of the appellant under Section 304 IPC seems to be unjustified and legally not acceptable. In holding so we derived authority from a decision of Hon’ble Supreme Court in the case of the State of A.P. vs. Rayavarapu Punnayya, reported in (1976) 4 SCC 382.
But, unfortunately, neither the prosecution nor the victim side had preferred a cross-appeal herein. Section 386 Cr.P.C. outlines the powers of the Appellate Court. In an appeal filed by the accused against conviction or sentence under Section 304, this Court can alter the finding such as acquit, reduce severity, or modify within limits and also alter the sentence. But, it cannot enhance the sentence or convict for a graver offence like 302 IPC. The clause (iii) (b) of Section 386 Cr.P.C., explicitly states ‘but not so as to enhance the same’ for sentence alterations in conviction appeals. Therefore, in absence of any such appeal, this Court is of the view that finding of the learned court in respect of converting the charge to Section 304 IPC from that of 302 IPC warrants no interference of this Court.
We have considered the submission of learned Amicus Curie in respect of converting the sentence under Section 304(I) IPC to Section 302(II) IPC and also gone through the decision in Mr. Tu-nsianmuanga Vs. State of Mizoram, Case No. Crl. A/40/2023, so referred by him, but, in view of the discussion and finding aforesaid we are unable to record our concurrence to the same. The decision, so referred by learned Amicus Curie, proceeds on its own merit and is clearly not applicable in the factual matrix of the case in hand.
The learned trial court has sentenced the appellant to suffer rigorous imprisonment for life and to pay fine of Rs.5000/-. In default, he has to suffer imprisonment for another period of two months. It has also been provided that the period of his detention in district jail, Kolasib he had under gone as UTP for a period of 3 (three) years, 11 (eleven) months and 24 (twenty four) days shall be set off in view of the provision of Section 428 Cr.P.C.
We are of the view that the sentence, so handed down, appears to be justified and commensurate with the diabolic nature of the offence, committed by the appellant.
In the result, we find this appeal devoid of merit and accordingly the same stands dismissed, leaving the parties to bear their own costs.
Send down the record of the learned trial court, with a copy of this judgment and order.