Judgment and Order [Cav]
R.K. Phukan, J.
1. Heard Ms. D. Borgohain, learned Amicus Curiae for the appellant and also Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam for the respondent.
2. This present appeal is directed against the judgment and order dated 3.9.2012 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 118/2008 whereby the accused/appellant has been convicted under Section 302 IPC and sentenced him SI for life and to pay a fine of Rs. 5000/- and in default of fine, SI for one year.
3. The prosecution story in brief is that on 2.5.2008 at around 8 PM, the accused appellant inflicted cut injury on the neck of the his elder brother Krishna Gogoi by means of sharp weapon and as a result, Krishna Gogoi succumbed to his injuries on the way to hospital. One Sri Narayan Bora/brother-in-law of the deceased lodged an FIR before the O/C Merapani P.S. on the next day of occurrence. Accordingly, Merapani P.S. Case No. 47/2008 was registered under Section 302 IPC. On completion of the investigation, police submitted charge sheet under Section 302 IPC against the accused/appellant. The accused stood the trial before the Court of Sessions. The charge under Section 302 IPC was framed and explained to the accused person, to which, he pleaded not guilty. During the course of trial the prosecution examined 10 witnesses and defence examined none. Plea of defence as averred from the statement under Section 313 CrPC is of private defence. It is pleaded that he has given the dao blow to the deceased to safe himself while the deceased want to cut him with a knife.
4. On conclusion of the trial, the accused was found and hold to be guilty under Section 302 IPC by the learned Sessions Judge and convicted him as aforesaid. Assailing the aforesaid judgment, the present appeal has been preferred by the accused from inside the jail as he was sent to judicial custody on the day of judgment.
5. The learned amicus curie in her argument has contended that as there was no any pre-meditation on the part of the accused/appellant to commit the offence and the deceased was his own brother and the offence took place due to the sudden fight between them over a trifle matter so the conviction under Section 302 IPC is not maintainable and liable to be set aside. Drawing attention to the Medical Report, it is also contended by the learned Amicus Curie that there is no such serious cut injury on the body of the deceased and the injury is found to be 2 X 1 on the left side of neck, caused by sharp pointed weapon, which also reveals that there is no fatal injury on the neck of the deceased. It has been contended that had there any intention to cause the death of the deceased then there would have been much more serious injury on the body of the deceased. It is also argued that there is no hostile relation or animosity between the parties so as to cause death of his own brother and all that happened out of sudden quarrel between the appellant and his mother and when the deceased interfered dao blow was given.
6. On the other hand, the learned Addl. P.P., Assam Ms. S. Jahan has contended that there is no any infirmity in the judgment and there is no evidence to conclude that the accused acted in private defence, whereas as per evidence on record the deceased died immediately after the occurrence on the way to hospital. It has been contended that the trial court has rightly convicted the accused/appellant and no interference is called for.
7. We have given due consideration to the rival contentions advanced before this Court and also gone through the entire evidence on record. As we found PW-1 Sri Narayan Bora, PW-2 Mina Gogoi both are brother and sister of the accused/appellant and PW-5 Smt. Bono Gogoi/wife of deceased has given corroborative evidence to the fact that on the day of occurrence at about 8 PM, the accused/appellant picked up a quarrel with his mother over a matter of sereki and thereafter he got an altercation with his elder brother (deceased), who was sitting nearby, over a selling of goat and thereafter the accused/appellant hacked the deceased Krishna Gogoi with a dao on his neck. Nothing emerges from their cross examination to demolish the story. It also emerges from their evidence, that the incident took place in front of the mother of the accused as well as the appellant, but she was not examined.
8. Other witnesses, PW-4 Krishna Phukan and PW-7 Golap Bora are neighbours of the deceased Krishna Gogoi and they arrived at the place of occurrence after hearing hue and cry, saw said Krishna Gogoi lying injured in his house though they took him to hospital but he died on the way. Obviously they are not the eye witness of the incident. Similarly, the PW-9 Gunja Phukan do not know about the occurrence and simply signed seizure list Ext.2 without knowing the content thereof.
9. Now we turn to the evidence of PW-8 Dr. S.G. Goswami, who happened to conduct postmortem examination on the dead body of Krishna Gogoi and he found one sharp cut injury caused by sharp pointed weapon on the left side of neck size 2 depth X 1 width and he has opined that the death occurred due to the shock and hemorrhage. PW-10 Prafulla Kumar Das is the I/O, who has stated about the course of investigation he carried out and about the seizure of dao, sending of dead body for PM examination, drawing of scratch map etc. No any contradiction etc. of any witness has been proved by the I/O.
10. After careful scrutiny of the evidence on record and the entire facts and circumstances, it reveals that the accused/appellant is the own brother of the deceased and on the fateful day the accused who reside nearby the house of the deceased went to their house and had a quarrel with his mother over a matter of sereki followed by an altercation with the deceased brother for the selling of goat as soon as deceased brother interfered in the quarrel between the accused/appellant and his mother. At the relevant time, the deceased was cutting green leaves inside the house, with a daw in his hand, but there is nothing to show that the accused carried a weapon to attack and assault the deceased. It was during the quarrel, suddenly the assault was made on the deceased but there is no clear picture as to where from the accused/appellant brought the dao to assault his brother. This serious aspect of the matter, coupled with the findings of the Medical Officer about only one injury on the side of the neck of the deceased indicates that there was no intention to cause death of deceased. The injury was inflicted due to sudden fight so crept into between the deceased and the appellant, without any pre-meditation. There appears no any mensrea on the part of the appellant to commit the offence. The witnesses in their cross examination has also averred that there was good relation between the deceased and the accused and there was no dispute whatsoever between them. To prove the offence under Section 300 IPC, the prosecution has to prove the ingredients of the Section 299 IPC, which read as follows:
299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
11. In the given case, the intention to cause death by the appellant is found lacking so as to hold him guilty of culpable homicide. Rather, the fact situation will render the accused guilty of the offence of culpable homicide not amounting to murder, which read as follows:
Exception 1. When culpable homicide is not murder.- Culpable homicide is not murder if the offender, whilst deprive of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation. Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
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Exception 4. Culpable homicide is not murder if it is committed without premeditation is a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
12. In the given case, there is no opinion of the Medical Officer to the effect that the injury caused was sufficient in ordinary course of nature to cause death. It is also found that there is only single blow with pointed weapon (Khukri) entailing death. From the matters on record, it appears that the appellant had no intention to cause death but he might have knowledge that it was likely to cause death also.
Exception 4 to Section 300 I.P.C. can be invoked if death is caused
(a) without premeditation
(b) in a sudden fight;
(c) without offenders having taken undue advantage or acted in a cruel or unusual manner.
In view of exception 4 to Section 300 I.P.C., culpable homicide is not murder if it is committed without premeditation in a sudden fight, without taking undue advantage. The explanation to above provision provides that it is immaterial to assess as to which party first made the assault.
13. In the given case as we have found the occurrence took place without any pre-mediation upon a sudden quarrel and the case will be covered under the exception 4. Keeping in view of the above aspect, the conviction stand altered to Section 304 Part-II IPC. Accordingly, the accused is convicted under said Section of law and sentence him to RI for 6 years by maintaining the amount of fine imposed by the trial court. The impugned order stands modified accordingly.
14. With the above observation and direction, the appeal is partly allowed.
15. Return the LCR along with a copy of this judgment and order immediately.