Gauhati High Court
Jahrul Islam vs The State Of Assam on 23 February, 2012
Author: A.K. Goel
Bench: A.K. Goel
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal NO. 107(J) of 2005
Md. Jahrul Islam,
Son of Shri Makaddas Ali,
Resident of village Hataiband,
P.O. Lakhipur, P.S. Patharkandi,
District- Karimganj, Assam.
.......... APPELLANT.
- VERSUS -
The State of Assam ...... RESPONDENT.
BEFORE HON'BLE CHIEF JUSTICE MR. A.K. GOEL HON'BLE MR. JUSTICE C.R. SARMA For the appellant : Ms. A. Devi, Amicus Curiae.
For the respondent : Mr. D. Das,
Addl. Public
Prosecutor, Assam.
Date of hearing : 20.12.2011
Date of Judgment and order::: 23/02/2012 JUDGEMENT AND ORDER(CAV) (C.R. Sarma, J) [1] This appeal is directed against the judgment and order, dated 20.06.2005, passed by the learned Sessions Judge, Karimganj, in Sessions Case No. 1 of 2005 (G.R. Case No. 657/04).
By the impugned judgment and order, the learned Sessions Judge convicted the accused-appellant, namely, Md. Jahrul Islam, under Section 302 of the Indian Penal Code (for short, „IPC‟) and sentenced him to suffer rigorous imprisonment Crl. Appeal No. 107(J)/ 2005 Page 1 of 17 for life and pay fine of Rs. 5,000/-(Rupees five thousand), in default, suffer simple imprisonment for another period of 1 (one) year.
Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. [2] We have heard Ms. A. Devi, learned Amicus Curiae, appearing for the appellant and Mr. D. Das, learned Addl. Public Prosecutor, appearing for the State respondent. [3] The prosecution case, in brief, as revealed during the trial, is that on 09.08.2004, at about 10.30 p.m., the appellant asked money from his mother, Smti Chilikjan Bibi (hereinafter called as "the deceased" and due to the refusal to give money, he had assaulted her with a dao causing injuries on her head, as a result of which she died. Mr. Shahab Uddin (PW 2), son-in-law of the deceased, lodged an FIR (Ext. 2) with the police. On receipt of the said FIR, police registered a case under Section 302 IPC and launched investigation into the matter.
[4] During the course of investigation, police visited the place of occurrence, prepared the sketch map (Ext. 3), got the autopsy done and examined the witnesses. At the close of the investigation, police submitted the charge sheet against the appellant, under Sections 302 IPC.
The case being committed to the Court of Session, the learned Sessions Judge framed charge under section 302, to which the appellant pleaded not guilty and claimed to be tried. Crl. Appeal No. 107(J)/ 2005 Page 2 of 17 [5] The prosecution examined, as many as, 8 (eight) witnesses, including the Medical Officer (PW- 1) and the Investigating Police Officer (PW- 8).
At the close of the evidence, the learned trial Judge examined the accused-appellant, under Section 313 of the Code of Criminal Procedure (hereinafter referred to as the "Cr.P.C"). Taking the plea of innocence, the appellant, in his statement, made under Section 313 Cr.P.C., denied the allegations, brought against him and declined to adduce defence evidence. [6] Having heard the learned counsel, appearing for the parties and considering the evidence on record, the learned Sessions Judge found the appellant guilty of the offence, under Section 302 IPC and accordingly convicted and sentenced him, as indicated hereinabove.
[7] Ms. A Devi, learned Amicus Curiae, has submitted that there is no substantive evidence against the appellant to show that the appellant had any intention to kill his mother i.e. the deceased and that the occurrence took place, due to an altercation, that took place between the appellant and his brother. It is submitted that during the said quarrel, the deceased sustained injuries as a result of which she died. In view of the above, learned Amicus Curiae has submitted that the prosecution failed to establish that the appellant committed the offence, under Section 302 IPC and as such, he is entitled to be acquitted on benefit of doubt.
[8] Mr. D. Das, learned Addl. Public Prosecutor, supporting the impugned conviction and sentence, has Crl. Appeal No. 107(J)/ 2005 Page 3 of 17 submitted that the nature and the number of injuries, sustained by the deceased, indicate that the appellant had caused the said injuries either with an intention to kill the deceased or with the knowledge that the injuries inflicted by him was likely to cause death of a person. Therefore, it is submitted that there are sufficient substantial evidence against the appellant. [9] Dr. Arunava Choudhury (PW-1), a senior Medical and Health Officer, Civil Hospital, Karimganj, conducted the post-mortem examination in respect of the dead body of the deceased on 10.08.2004, i.e. on the following day of the occurrence. His findings are as below:
"Injuries.
1) There is one incised wound on right side of skull, 4" x 1/2" in size, extending from frontal regionto parietal region with underlying parietal bone cut and laceration of underlying parietal lobe of brain.
2) One incised wound on right side of skull, 10"
x 1/2" in size, extending from frontal region to occipital region, with underlying frontal, parietal and occipital bone cut with laceration of underlying brain matter.
Cranium and spinal canal.
Scalp- cut injury corresponding to site of injury.
Skull- frontal, parietal & occipital bone cut corresponding to site of injury. Vertabrae- Healthy; Membrane- cut corresponding to site of Crl. Appeal No. 107(J)/ 2005 Page 4 of 17 injury. Brain and spinal cord- Brain matter lacerated corresponding to site of injury.
Thorax
Walls, ribs and other organs healthy
excepting heart contained blood and vessels contained blood.
Abdomen
Stomach and its contents and small
intestine and its contents became healthy. Large intestine and its contents became healthy & contained faecal matter. Others became healthy excepting bladder became healthy & empty.
Organs of generation etc became healthy & uterus- non-pregnant.
Muscles, bones & Joints As described in column I under external appearance.
More detailed description etc. The injuries were ante- mortem."
[10] The said Medical Officer opined that the death was caused due to cranio-cerebral injury sustained by the deceased and that the injuries might have been caused by a „bati‟ dao (a sharp cutting instrument). He has exhibited the post mortem examination report as Ext. No. 1. Though the said Medical Officer was cross-examined, no discrepancy could be elicited in respect of the said evidence.
Crl. Appeal No. 107(J)/ 2005 Page 5 of 17 [11] As revealed by the prosecution witnesses and the medical evidence aforesaid, there is no dispute that the deceased died due to the injuries sustained by her.
[12] Now the question is who caused the said injuries.
The prosecution version is that the appellant had caused the said fatal injuries.
[13] PW 2 (Shahab Uddin), as informant, lodged the FIR (Ext. 2), He did not see the occurrence. He stated that the appellant was a mentally imbalanced person. He further stated that a quarrel had taken place between the two brothers regarding a motorbike and in the said quarrel, the deceased sustained injuries and that she succumbed to the said injuries.
This witness was declared hostile and cross- examined on behalf of the defence. In his cross-examination, made by the prosecution, this witness admitted that he came to know, from his younger brother, Baharul (PW-3), that the appellant had picked up a quarrel with his mother regarding motor cycle and money and that he had hacked her on head, with a „bati‟ dao.
[14] Shri Baharul Islam, who is the brother of the appellant, deposing as PW 3 has stated that he was not available at their residence, at the time of occurrence. According to PW 1, after returning home, he found his mother in injured condition, and, on being asked, Smti Anowara Begom (PW-5) informed him that the appellant had killed their mother. This witness was also declared hostile and cross-examined by the prosecution. The Crl. Appeal No. 107(J)/ 2005 Page 6 of 17 defence also cross-examined PW-3. He denied the suggestion that the appellant was mentally sick person. [15] Shri Makaddas Ali (PW-4) was the husband of the deceased. He came to know that the appellant had inflicted cut injury on the head of his mother (i.e. the wife of PW -4). Coming to know about the incident, he rushed to his house and found his wife in injured condition. According to this witness, she was unable to speak and she succumbed to her injuries. He further stated that Ms. Manika Begum (PW- 6) and Ms. Anowara Begum (PW-5), who were present at the time of occurrence, had told him that the appellant had killed his mother by giving blow with a dao, on the ground that the deceased refused to give money to the appellant, on being demanded by him. This witness, on being asked by the court, stated that the appellant was mentally and physically sound.
[16] Ms. Anowara Begom, who deposed as PW -5 stated that, on the date of occurrence, she visited the house of the deceased. According to this witness, while she was talking with the deceased, the appellant asked the deceased to give him money and as the deceased refused to give money, the appellant fetched a dao from the house and hacked his mother on her head and fled the place with dao. She further stated that, on being so assaulted by the appellant, the deceased had fallen down and succumbed to her injuries. This witness was duly cross-examined on behalf of the deceased, but no contradiction could be elicited to render her evidence disbelievable. Crl. Appeal No. 107(J)/ 2005 Page 7 of 17 [17] Smti Manika Begum (PW-6), also, in tune with the evidence of PW-5, stated that she was present at the time of occurrence and when she and PW-5 were gossiping with the deceased, the appellant asked his mother to give him Rs. 100/- and on being refused by his mother to give him money, the appellant hacked her with a dao, as a result of which, she died. [18] Shri Abdul Latif, deposing as PW 7, stated that, on the day of occurrence, he saw the appellant running towards the east with a dao. He further stated that, hearing hue and cry; he also rushed to the place of occurrence and found the deceased in injured condition and came to know that the appellant had killed his mother.
[19] The Investigating Officer, Mr. Basir Uddin Laskar (PW- 8), who prepared the inquest report, in respect of the dead body of the deceased and the sketch map (Ext. 3) had sent the dead body of the deceased for post-mortem examination. From the cross examination of the I.O. no contradiction or discrepancy, in respect of the evidence of the prosecution witness, could be elicited.
[20] From the above-discussed evidence, it is found that the occurrence took place in presence of two eyewitnesses, namely, Smti Anowara Begum (PW-5) and Smti Manika Begum (PW-6). Both of them clearly stated that the appellant had given dao blows on the head of the deceased.
Though the said witnesses were duly cross-
examined, on behalf of the defence, no material contradiction could be brought out to make their evidence disbelievable. Crl. Appeal No. 107(J)/ 2005 Page 8 of 17 [21] Though, PW- 2 (Sahab Uddin), i.e. the informant, who was the brother-in-law of the appellant, stated that the appellant was a mentally sick person, Shri Baharul Islam (PW-3) and Shri Makaddas Ali (PW-4) i.e. the brother and the father of the appellant, respectively, clearly stated that the appellant was a mentally and physically fit person. The said evidence given by the father and the brother of the appellant, clearly indicate that the appellant was mentally sound person. Hence, we find no force in the evidence of PW-2 to believe that the appellant was a mentally sick person.
[22] Therefore, considering entire evidence, on record, more particularly, the evidence of the said eye witnesses, i.e. PW- 5 and PW-6, it is clearly found that none other than the appellant had caused injuries, as a result of which the deceased died. There is nothing on record to find that the PW Nos. 5 and 6 had any reason or grudge to falsely implicate the appellant. Therefore, we find sufficient substantive evidence to believe that the appellant had caused the death of the deceased. Hence, it has been established that the appellant caused the death of the deceased.
[23] The learned Amicus Curiae, referring to the relationship between the appellant and the deceased and the circumstances, in which the assault was caused, has strenuously contended that the appellant, being the son, had no intention to kill his mother, or to cause any bodily injury with the knowledge that such injury was likely to cause her death.
It is also contented, on behalf of the appellant, that as the said mother, on being asked, had refused to give money to Crl. Appeal No. 107(J)/ 2005 Page 9 of 17 the appellant, which he expected to get from his mother, he became angry and, loosing his cool in a heat of passion out of sudden quarrel regarding money, inflicted blows only to threaten his mother or to realize money, without any intention to kill her or cause any such bodily injury which might cause the death. Therefore, it is submitted that the appellant is not guilty of murder, i.e. the offence under Section 302 IPC. [24] In the light of the above, we now proceed to examine, whether the offence committed by the appellant falls under Section 302 IPC or Section 304 IPC. As provided by Section 300 IPC, which reads as follows, except under the exceptions, prescribed by Section 300 IPC, culpable homicide is murder.
"300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or-
Secondly, if is done with the intention of causing such bodily injury, as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly, I the person committing the act know that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as it likely to cause death, an commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 - Culpable homicide is not murder if the offender whilst deprived of the power of self control by grave and sudden provocation, causes the death of death of any person by mistake or accident.
The above exception is subject to the following provisos:Crl. Appeal No. 107(J)/ 2005 Page 10 of 17
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.
Exception 2. Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and cause the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm that is necessary for the purpose of such defence.
Exception 3. Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. Culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel or without the offender having taken undue advantage or acted in a cruel unusual manner.
Explanation.- It is immaterial in such cases, which party offers the provocation or commits the first assault.
Exception 5. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death his own consent."
[25] The Exception No (4) provides that the culpable homicide is not murder, if it is committed without premeditation, Crl. Appeal No. 107(J)/ 2005 Page 11 of 17 in a sudden fight and in the heat of passion upon a sudden quarrel or without the offender having taken undue advantage or acted in a cruel unusual manner.
[26] In view of the above, if death is caused without pre- meditation in a sudden fight, in the heat of passion upon a quarrel and without taking undue advantage or without acting in a cruel unusual manner then the act of causing death, by the assailant would not be a murder, but amount to a culpable homicide not amounting to murder.
[27] From the evidence, as revealed by the prosecution witness No. 2, who lodged the FIR, it is found that a quarrel had taken place between the two brothers i.e. the appellant and PW3 regarding the key of the bike and the deceased, while intervening in the quarrel between the two brothers, sustained the injuries. From the evidence of the eyewitnesses, i.e. PW5 and PW6, it is found that the appellant had initially asked for money from his mother. Admittedly, there can be no wrong in asking money, from the mother, by her son. But as the said mother i.e. the deceased had refused to give money, the appellant inflicted the blows. There is nothing, on record, to show that the appellant had asked the money, being armed with a dao or that he had any previous grudge to kill his mother. Also there is no material to show that he had any premeditation to kill his mother. Therefore, from the evidence of PW5 and PW6, it transpires that, failing to get money, as expected, from his mother, the appellant lost his cool and with a view to threaten his mother, to realize money, inflicted the blows. Thus, refusal of the mother to give money to her son, on being asked, was the only cause, which Crl. Appeal No. 107(J)/ 2005 Page 12 of 17 prompted the appellant to assault his mother. There is also nothing, on record, to find that the appellant had any criminal background. On the other hand, according to PW2, the deceased sustained injuries while intervening between the two brothers. Hence, the prosecution evidence reveals two versions regarding the incident.
In view of the above, as indicated by PW2, the deceased had suddenly sustained the injuries due to her coming between her two quarrelling sons. According to PW5 and PW6, the appellant failing to get money inflicted the blow. To appreciate the evidence of PW5 and PW6, we are required to examine if the injuries were inflicted due to sudden provocation in a heat of passion out a sudden quarrel.
[28] There is no fixed standard or criteria in getting provoked. Provocation is the cause which ignites the inner feeling of the mind temporarily, in a given situation, prompting a person to do an act. The act is the outburst of the inner feeling of the mind of the person so provoked. It is the reaction of the provocation. Provocation relates to mental status and the prevailing circumstances etc. The situation in which a person gets provoked may vary from person to person. The degree or intensity of provocation also may vary from person to person depending on the mental condition of the person and the attending circumstances.
[29] In view of the above, considering entire aspect of the matter, it cannot be ruled out that the refusal of his mother, i.e. the deceased to give him money, made, the said son angry as a result of which, failing to fulfill his desire to get money, as Crl. Appeal No. 107(J)/ 2005 Page 13 of 17 expected, he lost his cool and got provoked to assault his mother, thereby causing injury to her. Admittedly, the demand made by the appellant and refusal of the mother to give money resulted a quarrel between the two.
30. Law is well settled that, in a criminal case, if there exists two views i.e. one going in favour of the prosecution and the other in favour of the accused, the benefit should go to the accused.
31. The medical evidence reveals that the injured sustained two injuries on the right skull. The said injuries, as revealed from the prosecution witness, do not appear to be inflicted cruelly / brutally or in any unusual manner. The injuries were the normal injuries, inflicted with a sharp cutting weapon (i.e. dao). It also transpires that, on being refused by the deceased to give money, the appellant had inflicted the injuries. Hence, it does not reveal that the injuries were caused taking any undue advantage.
32. In view of the above discussion, it can be safely held that the appellant, without premeditation suddenly, in the heat of passion out of a sudden quarrel i.e. the quarrel relating to demand of money and refusal of the demand. There is no difficulty in understanding that the appellant reacted by assaulting his mother in the said process of demanding money.
Taking the evidence of PW2 into confidence, it can be found that the appellant had no intention to cause any injury to his mother and she sustained the injuries due to her intervention between the two brothers. Therefore, the offence committed by the appellant falls under the 4th exception of the Section 300 IPC. Hence, we are inclined to hold that the Crl. Appeal No. 107(J)/ 2005 Page 14 of 17 appellant committed the offence of culpable homicide not amounting to murder. Thus, it is found that he committed the offence under Section 304 IPC and not under Section 302 IPC.
Therefore, his conviction under Section 302 IPC cannot be maintained and the same is liable to be modified to one under Section 304 IPC.
[33] Section 304 IPC has two parts i.e. Part-I and Part-II. If the death is caused by an act done with intention of causing death or of causing such bodily injury as is likely to cause death, then the offence committed by the assailant would fall under Part-I of Section 304 IPC and if the culpable homicide is caused by an act done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury, as is likely to cause death, then the offence would be covered by Part-II of the Section 304 IPC.
[34] From the Medical evidence, as discussed above, it is found that the injuries were caused by a sharp cutting weapon and the injuries were inflicted on vital parts including the skull. If he had the intention to cause death, he could have inflicted some more blows on the other vital parts also. The fact that he had inflicted only two blows, that too being angry for not getting money, indicates the absence of intention to cause the death or causing such bodily injury as is likely to cause death. The evidence of PW2 also negates the existence of such intention or knowledge. From the evidence PW2, it is found that the deceased had sustained the injuries only due to her intervention between the two quarrelling brothers. A close reading of the evidence of Crl. Appeal No. 107(J)/ 2005 Page 15 of 17 PW-2 indicates that the fatal injuries were not intended. However, according to PW5 and PW6, he had reacted upon refusal of his mother to give money and in the process to realize money inflicted the cut blows. Hence, there appears existence of two views regarding the incident. Even if, we believe the evidence of PW 5 and PW-6 then also we find that, except to get money, he does not appear to have intention to cause any fatal injury, as sustained by the deceased. In view of the above, the prosecution failed to prove the existence of the ingredients „intention of causing death, or of causing such bodily injury as is likely to cause death‟. Therefore, the offence committed by the accused does not fall under Section 302 IPC.
35. Admittedly, he had inflicted the blows on the head with a sharp weapon. However as held above, there was no intention to cause the particular injuries, sustained by the deceased. There can be no dispute that it is within the knowledge of every person of sound mind that such a blow could land on the head, which could be fatal. Therefore, it can be safely concluded that the accused had the knowledge that the injuries inflicted by him were likely to cause death. Hence, the accused is found to have committed the offence under Section 304 Part-II IPC.
[36] In view of the above, we are of the considered opinion that the impugned conviction and sentence, rendered under Section 302 IPC, are not maintainable. Therefore, the said conviction is modified to one under Section 304 Part-II IPC and consequently, the sentence of life imprisonment is modified to Crl. Appeal No. 107(J)/ 2005 Page 16 of 17 the period, already undergone. However, no interference is made in respect of the sentence of fine.
[38] With the modifications, as indicated above, this appeal is partly allowed to the extent aforesaid.
[39] Return the LCRs. [40] We acknowledge with appreciation the assistance
rendered by Ms. A. Devi, learned counsel as amicus curiae and direct that an amount of Rs. 5,000/- (Rupees five thousand) only be paid to the learned Amicus Curiae as her remuneration.
JUDGE CHIEF JUSTICE
Eam/..
Crl. Appeal No. 107(J)/ 2005 Page 17 of 17