Gauhati High Court
Mangra Majhi @ Anil vs The State Of Assam And Anr on 26 February, 2021
Equivalent citations: AIRONLINE 2021 GAU 171
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/9
GAHC010210762018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/98/2018
MANGRA MAJHI @ ANIL
JORHAT.
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:SRI BIJIT MAJHI
S/O SRI DHANESWAR MAJHI
VILL.- SATAI MAJHI CHOWK
PS- TEOK
DISTRICT- JORHAT
ASSA
Advocate for the Petitioner : MR K GOSWAMI, AMICUS CURIAE
Advocate for the Respondent : PP, ASSAM
BEFORE
THE HON'BLE MR. JUSTICE SUMAN SHYAM
THE HON'BLE MR. JUSTICE MIR ALFAZ ALI
Date of hearing : 26/02/2021.
Date of judgement : 26/02/2021
JUDGEMENT AND ORDER (ORAL)
Page No.# 2/9 Suman Shyam, J
1. Heard Mr. K. Goswami, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State. Mr. B.C. Das, learned Legal Aid Counsel appears on behalf of the informant.
2. This appeal has been preferred from the jail by the sole appellant who was convicted under Section 302 of the IPC and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs. 10,000/- with default clause for committing murder of Sanjay Majhi.
3. The prosecution case, in a nutshell, is that on 13/10/2016 at around 8-30 a.m., the accused Mangra Majhi @ Anil Majhi had a quarrel with Sanjay Majhi on the road over some matter and thereafter, murdered the deceased by hacking him in the neck and hand by a "copi dao".
4. The elder brother of the deceased Sri Bijit Majhi (PW-1) had lodged an ejahar on 13-10- 2016 before the Officer-in-Charge of Lahdoigarh Police Out-post, based on which, Teok PS Case No. 444/2016 was registered under Section 302 of the IPC and the matter was entrusted for investigation to S.I. Shri Pabitra Kumar Bora. Upon completion of investigation, the I.O. had submitted charge sheet, based on which, charge was framed against the accused under Section 302 of the IPC. Since the accused had pleaded not guilty, the matter went up for trial.
5. During the course of trial, the prosecution side had examined as many as 7 (seven) witnesses. The statement of the accused was recorded under Section 313 of the Cr.P.C. whereby he had denied having assaulted Sanjay Majhi but the defence side did not adduce any evidence.
6. The prosecution story is primarily based on the testimony of two eye witnesses i.e. PWs 4 and 6.
7. The informant in this case i.e. PW-1 has deposed before the Court that in the morning of Page No.# 3/9 the day of the incident, at about 8-30 a.m., when he was having meal in his house, at that time a co- villager Sanjay Majhi came to his house and informed that the accused Mangra Majhi has cut his brother Sanjay Majhi and put him in the ground near the house of Sahensha. He immediately rushed to the place of occurrence and found his brother's dead body lying on the ground. The co-villagers then went to the house of the accused and not only apprehended him but also man-handled the accused. The witness has further deposed that the co-villagers took his brother to the Jorhat Medical College and Hospital (JMCH) and later on, post-mortem examination was conducted on the dead body. At around 4 p.m. on that day, the PW-1 went to the Lahdoigarh Police Out Post and lodged an FIR informing about the incident. Ext. 1 is the FIR and Ext. 1(1) is his signature.
8. PW-2 Sri Mukesh Mandal is another villager who had deposed that on 13/10/2016 at around 8-30 a.m., he came out and saw the accused holding a dao in his hand and proceeding towards his house. Later on, he saw deceased Sanjay Majhi bleeding at a distance of over 10 ft. from his house. This witness was later declared as a hostile witness as he did not support the prosecution case. During his cross examination, PW-2 has, however, denied having stated to the Police that his co- villager Mangra Majhi had a quarrel with Sanjay Majhi over some matter and thereafter, Mangra Majhi hacked Sanjay with a "copi dao"; that Sanjay Majhi had sustained cuts on both hands while protecting himself and that Mangra Majhi had intentionally killed Sanjay Majhi by hacking him in the neck.
9. PW-3 is the doctor who had conducted post mortem examination on the dead body of the deceased on 13/10/2016 in the JMCH. As per the post mortem report Ext-2, the following injuries were found in the dead body:-
"WOUNDS, POSITION AND CHARACTER-
Injuries:-
(i) Incised wound of size 10 cm x 3 cm x bone deep is present over left lateral side of upper part of neck which is horizontal, the anterior end lies 2 cm below ear lobule.
(ii) Incises wound of size 9 cm x 0.5 cm x muscle deep is present just below above Page No.# 4/9 injury.
(iii) Incised wound of size 7 cm x 3 cm x bone deep is present over the web of left index and middle finger.
(iv) Incised wound of size 8 cm x 1 cm x bone deep is present over clorsum of medial side of hand involving the index finger and second metacarpal on right side."
The doctor had opined that the cause of death was due to haemorrhagic shock as a result of injuries sustained over the body as described. All the injuries were ante-mortem and caused by moderately heavy to heavy sharp cutting weapon and were homicidal in nature.
The time since death was approximately 3-6 hours.
10. PW-4 Miss Pinky Begum is one of the eye witnesses examined by the prosecution. In her testimony, PW-4 has stated that on the day of the incident at about 8-30 a.m. when she came out to spread clothes after getting dressed to go to the School, she saw deceased Sanjay Majhi come riding a cycle and then the accused, approaching from backside had hacked the deceased in the neck and hand with a dao. The victim Sanjay Majhi fell from the cycle. Then the accused fled towards his house. This witness has also deposed that she had seen the whole incident from her courtyard. During her cross examination, the PW-4 was confronted with her previous statement made before the Police under Section 161 Cr.P.C. wherein, but she had denied that she had falsely adduced evidence saying that deceased Sanjay Majhi came in a cycle and the accused had hacked him with a dao from behind which resulted in his death.
11. PW-5 Sri Raju Majhi is a seizure witness and he had merely deposed that having heard hue and cry in front of the house of Sahenshah Kaul, he came running and saw Sanjay Majhi in an injured state with cut injury in the back and in his hand. This witness has deposed that he saw Sanjay Majhi lying dead on the ground. He has also stated that he came to know from Miss. Pinky Begum (PW-4) that the accused had hacked Sanjay Majhi with a dao. According to PW-5, he had brought the dao Page No.# 5/9 seized by the Police from the house of the accused and handed the same over to the Police. Later, the Police had seized the dao vide seizure list Ext. 3 and Ext. 3(3) is his signature. There was blood stain in the dao.
12. PW-6 Sri Sunil Majhi is another eye witness to the incident. This witness has also confirmed that the incident took place on 13/10/2016 at about 8 a.m. On that day, he came out from his home to the road and saw that there was altercation between Sanjay Majhi and the accused. The accused then gave two dao blows - on the head and neck of Sanjay Majhi and he fell on the ground. Sanjay Majhi did not get the chance to protect himself. When he reached near the dead body of Sanjay Majhi, PW-4 Miss. Pinky Begum and PW-5 Sri Raju Majhi were also there. Going near the dead body, the PW-6 so injury marks in the neck and hand of the victim who was lying in a moribund state. The Police later seized the dao and Ext. 3(4) is his signature in the seizure list.
13. PW-7 Sri Pabitra Kumar Bora was the IO in this case. He has deposed that on 13/10/2016, while he was working in the Lahdoigarh Out Post, he received ejahar from the informant, whereafter, G.D. entry No. 247 was made and the ejahar was sent to the Teok Police Station for registration of a case. Accordingly, Teok P.S. case No. 444/2016 was registered under Section 302 of the IPC and the investigation was entrusted to him. PW-7 has also stated that he went to the place of occurrence, he found that the dead body of Sanjay Majhi was lying beside the road. The Circle Officer had reached the place of occurrence and conducted inquest on the dead body. Thereafter, the dead body was sent to the JMCH for post mortem examination. PW-7 has also deposed that he has recorded the statement of Sunil Majhi, Mukesh Mandal, Raju Majhi and Miss Pinky Begum at the place of occurrence itself. He has also stated that the public were assaulting the accused. So, after rescuing the accused, he was brought to the Police Station. The IO has also confirmed that the "copi dao" used by the accused for hacking the victim was seized. During his cross examination, the IO has stated that the dao was not sent to the Forensic Science Laboratory for opinion nor was the finger print of the accused examined.
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14. Based on the evidence available on record, the learned Additional Sessions Judge, Jorhat had passed the judgement and order dated 24/07/2018 in connection with Sessions Case No. 243/2016, convicting the appellant under Section 302 of the IPC and sentencing him to undergo life imprisonment.
15. Mr. K. Goswami, learned Amicus Curiae has taken us through the evidence available on record and submitted that there is reliable evidence to demonstrate that a quarrel took place between the accused and the deceased immediately before the victim was hacked with a dao. Therefore, this is not a case falling under Section 302 of the IPC but the matter would come within the fold of exception 4 of Section 300 of the IPC. By relying upon a decision of the Supreme Court in the case of Sukhbir Singh Vs. State of Haryana and others reported in (2002) 3 SCC 327, Mr. Goswami submits that there is no pre-meditation in this case and the accused did not take advantage after the victim fell on the ground. According to Mr. Goswami, the incident took place in a heat of passion due to the sudden quarrel that took place between the accused and the victim and, therefore, the conviction under Section 302 of the IPC be set aside and a lesser punishment be awarded to the appellant.
16. Ms. B. Bhuyan, learned APP, Assam, has argued that the evidence brought on record clearly establishes that it is none other than the appellant who had hacked the deceased to death. Therefore, the learned trial Court has rightly convicted the appellant. The learned APP has forcefully argued that the appellant had all the intention to kill since two blows had been given in the vital part of the body of the victim. She submits that the victim was already dead and, therefore, there was no scope for the appellant to take further advantage in the matter. Similar is the submission of Mr. B.C. Das, learned Legal Aid Counsel appearing for the informant.
17. We have considered the submission of the leaned counsel for all the parties and have carefully gone through the materials available on record. The fact that the deceased Sanjay Majhi had suffered homicidal death is established from the post mortem report (Ext. 2). From Ext. 2, it is evident Page No.# 7/9 that the victim had suffered at-least two incised injuries in the neck, inflicted by a sharp weapon, and he had also suffered injuries in his hand. The doctor's opinion also confirms that death was due to the injuries suffered by the victim
18. The eye witnesses account, more particularly, the testimony of PW-6 has remained unshakened during his cross examination. This witness has vividly narrated the entire incident leading to the death of the victim and has deposed that he had seen that the accused had hacked the deceased Sanjay Majhi on his neck by a dao which has lead to his death. The version given by the PW-6 finds due corroboration from the testimony of the other eye witness i.e. PW-4, who had also seen the appellant hacking the deceased Sanjay Majhi in his neck with a dao. In such view of the matter, there is no room for this Court to doubt that it is the appellant who had inflicted fatal injuries upon the deceased with a sharp weapon which has lead to his death.
19. Coming to the argument advanced by the learned counsel for the appellant regarding application of exception 4 to Section 300 of the IPC, we deem it appropriate to reproduce the said provision for ready reference :-
"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 and without the offender having taken undue advantage or acted in a cruel or unusual manner."
20. In this case, as noticed above, the PW-6 has clearly stated that there was an altercation between the accused and the victim immediately before the incident took place. Similar is the version given by the PW-2 who had also stated that there was an altercation between the parties. Although the PW-4 did not mention about such altercation in her testimony, yet, we find that the said witness had said so to the Police while recording her statement under Section 161 Cr.P.C. It may be noted herein that the statement of the witnesses including the PW-4 was recorded by the IO at the place of occurrence on the same date on which the incident took place. The witness PW-4 also did not state Page No.# 8/9 before the Police that the victim was riding a bicycle when he was attacked by the appellant but such statement was made in her deposition.
21. Be that as it may, law is well settled that even the testimony of a hostile witness, which finds corroboration from other evidence on record, can be considered by the Court while appreciating the evidence. From the evidence of PW-6 read with that of PW-2, we are convinced that an altercation between the appellant and the deceased preceded the assault made by the appellant on Sanjay Majhi. The initial version of the PW-4 also points towards that direction.
22. In the case of Sukhbir Singh (Supra), the Supreme Court, while dealing with the circumstances where the benefit of exception -4 of Section 300 of the IPC can be availed, has observed that defense is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage nor has the offender acted in a cruel or unusual manner. It was also observed that the time gap between the quarrel and the incident would be important and if there is sufficient time for the passion to subside giving the accused time to come to normalcy and the fight take place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of Exception -4.
23. From the statement of the accused recorded under Section 313 of the Cr.P.C., we find that he is a Tea Labourer. In this part of the country, it is very usual for a Tea Labourer, to carry a "dao" (sharp weapon) in a routine manner since it is an implement used to carry out his day to day activities.
24. There is no evidence of any previous animosity between the parties. Evidence on record suggest that the incident took place on the road when there was an altercation between parties. There is no evidence to show that there was any pre-meditation on the part of the appellant. Moreover, it is correct that after the victim fell on the ground on being hacked, the accused did not Page No.# 9/9 take advantage of the situation but instead he returned back to his home and remained there. The accused also did not make any attempt to flee the law. Later on, the villagers came to his house, caught hold of him and manhandled the appellant. He was then taken to the Police Station.
25. From a careful examination of the evidence available on record, we are of the opinion that although it cannot be said that there was no intent on the part of the appellant to kill the deceased, yet, it clearly appear to us that there was no pre-meditation and the appellant had acted in a heat of passion, having lost his sense of self control due to provocation arising out of the altercation. In that view of the matter we are of the opinion that this case comes within the fold of Section 304 Part-I of the IPC.
26. We accordingly, set aside the conviction of the appellant under Section 302 of the IPC and convict him under Section 304 Part-I of the IPC. The jail sentence awarded to the appellant is accordingly reduced to 10 years of rigorous imprisonment. The fine imposed by the learned trial Court, shall however, remain unaltered.
The appeal stands partly allowed.
Send back the LCR.
JUDGE JUDGE Sukhamay Comparing Assistant