Gauhati High Court
Page No.# 1/2 vs The State Of Assam on 10 April, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/20
GAHC010104742021
2025:GAU-AS:4683-
DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRL.A(J)/23/2021
JAGU HEMBRAM
UDALGURI, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. M DUTTA, AMICUS CURIAE, MR. B BARUAH
Advocate for the Respondent : PP, ASSAM,
BEFORE HONOURABLE MR. JUSTICE SOUMITRA SAIKIA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND JUDGEMENT AND ORDER (CAV) Date : 10-04-2025 (S.P. Khaund, J) Heard learned counsel for the appellant Mr. M Dutta, and learned Amicus Curiae, Mr. B Baruah, and learned Additional Public Prosecutor, Ms. A Begum, appearing on behalf of the Page No.# 2/20 State of Assam.
2. This appeal is directed against the Judgment and Order dated 23.11.2020, passed by the learned Sessions Judge in Sessions Case No. 61 (U)/2015, convicting Jaggu Hembram (hereinafter, also referred to as the appellant or the accused), under Section 302 of the Indian Penal Code, 1860 (IPC, for short) and sentencing him to undergo imprisonment for life and a fine of Rs. 5,000/- with default stipulation and under Section 448 of the IPC and sentencing him to undergo imprisonment for a period of 6 months and a fine of Rs. 1,000/-, with default stipulation.
3. The genesis of the case was that on 16.03.2014, at about 09:30 pm, the appellant called Gopi Hembram (hereinafter also referred to as the victim or the deceased) and asked him to come out of his residence and repeatedly attacked him with a dao. Gopin Hembram instantly succumbed to his injuries, while the appellant fled from the place of occurrence (PO, for short). Gopin's wife, Smt Marangmai Tudu raised alarm and the villagers gathered at the PO. On the following day, i.e., on 07.03.2014, Smt Marangmai Tudu (hereinafter also referred to as the informant) lodged an FIR with the Police, which was registered as Udalguri PS Case No. 330 of 2014, under Sections 448/302 IPC.
4. The Investigating Officer (IO, for short) embarked upon the investigation. He went to the place of occurrence and prepared the sketch map and recorded the statements of the witnesses. Inquest was held and the body was forwarded for autopsy. The IO seized one blood-stained dao (machete kind of weapon) with a bamboo handle and forwarded the same for chemical examination.
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5. On completion of investigation, charge sheet was laid against the appellant under Sections 448/302 IPC.
6. At the commencement of trial, a formal charge under Sections 448/302 IPC was framed and read over and explained to the appellant, who abjured his guilt and claimed innocence.
7. To substantiate its stance, the prosecution adduced the evidence of 11 (Eleven) witnesses, including the Medical Officer (MO, for short) and the IO.
8. On the circumstances projected against the appellant through the evidence of the witnesses, several questions were asked to the appellant and he, in a blanket manner denied his involvement. He did not tender any evidence in defence. The learned trial Court delineated the following points to decide this case:
"8. Points for determination:-
(i) Whether on 16.3.2014 at about 9.30 p.m. accused Jagu Hembram committed house trespass by entering into courtyard of the informant Marangmoi Tudu with a view to commit an offence as alleged?
(ii) Whether on 16.03.2014 at about 9.30 p.m. accused Jagu Hembram committed murder of Gopin Hembram by intentionally causing his death by attacking him with a dao and thereby committed an offence punishable U/S 302 IPC as alleged?"
Findings of the Trial Court : -
9. It was held by the learned Trial Court that the appellant visited the house of the deceased at 10 p.m. Page No.# 4/20 He was carrying a sharp weapon with him.
Then, the appellant caused injury on the vital parts of the body of the deceased as proved by the doctor, PW-5.
On post-mortem examination of the dead body, sharp cut wounds were detected :-
(i) Extended from angle of mouth to nape of neck,
(ii) With multiple cut injuries measuring 5'' long x 2 inches breadth x 2 inches depth.
(iii) Sharp cut injury : 2.5'' (L) x 2 inch (B) x 2.5 inch (D), cut to shoulder bone (left) and,
(iv) Death was the result of sharp cut injury leading to haemorrhagic shock.
10. The injuries thus reflect the force exercised by the appellant while causing the same. It was also held by the learned Trial Court that it is not the case of the prosecution that the injuries were caused by the appellant as a result of sudden quarrel or sudden fight. It was held that the manner in which the appellant forced the deceased to come out of his house while he was sleeping inside his house depicts that the appellant had a pre-meditated mind. It was also held by the learned Trial Court that there is no evidence to show that the incident occurred due to grave and sudden provocation. The appellant acted in a cruel and unusual manner as he dealt several blows on the deceased instead of one single blow. It was also held by the learned Trial Court that the conduct of the appellant immediately after the incident is relevant as the appellant immediately fled the scene. Arguments for the appellant:
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11. It is submitted on behalf of the appellant that this case rests squarely on the evidence of only one eye-witness, i.e., the wife of the deceased. There are too many contradictions and the evidence is inconsistent. Although blood sample was lifted and forwarded for chemical examination, there was no match to connect the appellant to the crime.
12. It is further submitted that it has emerged through the evidence that the victim's 10 year old daughter had witnessed the incident but she was not produced as a witness. The weapon of offence was not exhibited or shown to the Medical Officer to affirm if any injury sustained by the deceased could have been caused by the weapon of offence seized in connection with this case. Several contradictions were elicited through the cross-examination of the witnesses, as per Section 145 of the Indian Evidence Act, 1872 (the Evidence Act, for short) qua Section 162 of the Code of Criminal Procedure, 1973 (CrPC, for short), and the contradictions have been confirmed through the cross-examination of the Investigating Officer. These contradictions exonerate the appellant. The time of the incident mentioned by different witnesses are not similar. The related witnesses have only supported the prosecution case, whereas the evidence of the other witnesses, who are not related can be termed as hearsay evidence. The appellant has been erroneously convicted under Section 448 IPC, as both the appellant and the deceased are brothers and they reside in the same premises, which is clearly revealed by the sketch map exhibited in this case. A person cannot be held to be guilty of offence of criminal trespass when he is found in his own campus or premises. No mens rea could be attributed as the evidence does not reveal earlier animosity or acrimonious relationship between the brothers.
13. Learned counsel for the appellant has relied on the decision of the Hon'ble Supreme Page No.# 6/20 Court in Rai Sandeep @ Deepu and Others -Vs- State (NCT of Delhi, reported in (2012) 8 SCC 21 and has submitted that owing to discrepancies and inconsistencies in the evidence of the informant, her evidence cannot be given credence and she is not a sterling witness.
14. Learned counsel for the appellant has also relied on the decision of Hon'ble the Supreme Court in Markash Jajara Vs. the State of Assam & Another ; reported in (2023) 14 SCR 834.
Arguments by the prosecution:
15. Learned Additional Public Prosecutor, Ms A Begum has submitted that there is direct ocular evidence against the appellant. It is further submitted that the number of witnesses examined does not affect the evidence if the evidence is found to be consistent and reliable. The evidence of one eye-witness is sufficient. The learned Additional Public Prosecutor has relied on the decision of the Hon'ble Supreme Court in Kartik Malhar -Vs- State of Bihar; reported in (1996) 1 SCC 614. The remaining part of the arguments submitted by both the sides will be discussed at the appropriate stage.
Evidence:
16. We have given our thoughtful consideration to the submissions at the Bar.
17. To decide this appeal in its proper perspective, the evidence is re-appreciated.
18. PW-1, Sri Mangal Hembram has deposed that both the informant and accused are Page No.# 7/20 known to him. The incident occurred in the previous year during Holi. At around 07:30 pm, he heard a commotion emanating from the deceased Gopin's house and he went there and saw Gopin lying in an injured condition in his courtyard. This witness was declared a hostile witness and the prosecution was allowed to cross-examine its own witness. When he was confronted by the prosecution, he denied that he mentioned in his initial statement that he saw Gopin Hembram lying smeared with blood and his children and family members were wailing and his wife and Gopin's wife informed him that the appellant attacked Gopin with a dao. He has also denied that he has mentioned in his initial statement that they tried to apprehend the appellant, but failed and that the appellant is a wicked, villainous and a quarrelsome person.
19. The other witness, who was declared as hostile, is Sri Ramesh Tudu, who has deposed as PW-2 that the incident occurred at around 8:00 p.m. on the last day of Holi. He heard about the incident of assault in Gopin's house and he went there and saw Gopin lying in the courtyard with injuries caused by a dao. The prosecution was allowed to cross-examine its own witness who was declared as hostile. This witness has denied the suggestion by the prosecution that he mentioned in his earlier statement that Gopin's wife informed him that the appellant killed Gopin with a dao. He has also denied that he informed the police that the appellant is a wicked and villainous person.
20. The evidence of Durga Murmu who deposed as PW-3 also clearly depicts that the incident occurred on the last day of Holi. He heard a commotion emanating from the appellant's house and he went to the place of occurrence and saw Gopin lying in an injured Page No.# 8/20 condition in his courtyard. He then informed the village Headman. The police held inquest in his presence and he identified the dead body. The police also seized a dao in his presence and he has affixed his signature on the seizure list as Exhibit 1 (1). This witness has proved the seizure list as Exhibit 1 and his signature on the seizure list as Exhibit 1(1).
21. The informant, Smt Marangmai Tudu, deposed as PW-4 that the appellant is her brother-in-law, i.e., younger brother of her husband. The incident occurred about a year ago. At the relevant time, around 10.00 pm, while she was sleeping along with the deceased, the appellant accompanied by his wife, Torda Hadsa came to their house and called her husband. A lamp was burning and they opened the door. Her son and two daughters were also sleeping at that time. When they went out, Jaggu attacked her husband, hacked him and thereafter, escaped. Her elder daughter, Laxmi, aged 10 years old, saw Jaggu stabbing her father. She and her elder daughter raised alarm and they also tried to flee when the appellant (Jaggu) hacked her husband. Her niece, whose name is also Laxmi Hembram, witnessed the incident. Her niece was 15 years old at the time of the incident. She is the daughter of her husband's elder brother, Jonkai Hembram. Jaggu's residence is towards the south of their house, whereas Jonkai resides towards the north of their house.
22. PW-4 further deposed that both the appellant (Jaggu) and his wife were inebriated at the time of the inident, The appellant picked up a quarrel relating to a land dispute. When she raised alarm, the people gathered at her residence and Jaggu fled the scene. She lodged the ejahar written by the scribe. After the incident, they have abandoned their house and they are staying in Jerusalem at present, whilst her daughter Laxmi Hembram resides in the house of a Bodo gentleman. This witness has also stated that at the time of the incident, her Page No.# 9/20 younger daughter was about 3 years old and her son was about 5 years old.
23. The Scientific Officer, Sri Sankar Ch. Rabha is PW-4 (A) and he has deposed that on 20.08.2014 while he was posted as Scientific Officer, Serology Division, Directorate of Forensic Science, Assam, he was advised to examine one parcel received by their office on 20.08.2014 in connection with Udalguri Police Station Case No. 30/2014 under Section 448/302 of IPC. The parcel consisted of two exhibits enclosed with a cover, which was sealed with an impression of a seal corresponding to the seal impression as S.P., Udalguri. The articles are described as follows :-
"DESCRIPTION OF ARTICLES :-
1. One bamboo handle dao contains stain of suspected blood. Total length of dao is 53.4 cm. approximate. The blade of the dao is moderately rusted. The handle of the dao is wrapped with plastic rope. My Sero No. 3373/A.
2. One air tight glass vial contains blood swab soaked in cotton gauze. Marked as "B".
Sero No. 3373/B/.
RESULT OF EXAMINATION :-
The exhibit No. No. 3373/A and Sero No. 3373/B gave positive test for human blood of group "A".
24. He has proved the report as Exhibit 2 and Exhibit 2(1) as his signature. In his cross examination he has testified that he did not verify that the blood sample sent for examination was the blood of the deceased.
25. Dr. Jayanta Kr. Deka deposed as PW-5 that on 17.03.2014, he was posted as Medical & Health Officer at Udalguri Civil Hospital. On that day in reference to Udalguri PS GD Entry No. 405 dated 16.03.2014, he conducted Postmortem on the dead body of Gopin Hembron, 40 Page No.# 10/20 years (male) and found the following :-
A male dead body with rigor mortis with injuries Sharp cut wound at different place of the body, Specially extended from angle of mouth to nape of the neck. Size of injury 5'' long x 2 inch breadth x 2 inch depth.
Another sharp cut wound at shoulder region left side.
Size of injury: 2.5'' x 2 inch breadth x 2.5 inch depth.
26. PW-5 has opined that death was due to sharp cut injuries leading to haemorrhagic shock and death. He has proved the Postmortem report as Exhibit 3 and his signature on the Postmortem report as Exhibit 3(1). In his cross examination he has stated that his medical report relating to age of the injury is illegible. This part of his cross examination is not noteworthy.
27. The informant's elder brother Sri Shyam Tudu deposed as PW-6 that the incident occurred at about 1:00 p.m. on the last day of Holi. He did not witness the incident. His younger sister called him and informed him about a quarrel between the brothers i.e. the appellant and the deceased. He (PW-6) further deposed that his sister informed him that the appellant assaulted her husband. The police held inquest on the dead body in his presence and he identified the body and affixed his thumb impression on the inquest report. In his Page No.# 11/20 cross examination he has affirmed that his sister called him at night and thereafter, he immediately went to the place of occurrence. He has also stated that his house is at a distance from 2 kms from the place of occurrence.
28. PW-7 Sri Chunkoi Hembram is a Tea Garden Labourer and he deposed that he did not witness the incident but he affixed his thumb impression when the police seized a dao in his presence.
29. PW-8 Smti. Manti Murmu is the daughter-in-law of the deceased and the informant.
She has stated that she did not witness the incident but the village Headman informed her that the appellant confessed before him that he killed the deceased.
30. PW-9 Sri Nitai Ch. Rai is the Investigating Officer and he has deposed that on 17.07.2014 he was posted as SI of Udalguri Police Station. On that day, the informant Marangmoi Tudu lodged an FIR and the O/C of the Udalguri Police Station entrusted him to investigate the case. He went to the place of occurrence, recorded the statements of witnesses and conducted inquest of the dead body. He prepared the sketch map of the place of occurrence. He has proved the sketch map as Exhibit-4 and his signature on the sketch map as Exhibit-4(1). He has affirmed that PW-1 and PW-2 have stated before him through their initial statements that the wife of the deceased informed them that the appellant killed the deceased with a dao and they have also mentioned that the appellant is a quarrelsome man.
31. This Investigating Officer conducted a major part of the investigation and the investigation was finally concluded by the other IO, Sri Dipankar Gogoi, who has deposed as Page No.# 12/20 PW-10 that on 02.02.2015, he was posted as S.I. at Udalguri P.S. On that day, he was handed over the Case Diary of the instant case i.e. Udalguri P.S. Case No. 30/2014 for investigation. On perusal of the Case Diary, he found that investigation was almost complete and he submitted charge sheet against the appellant under Section 302/448 of IPC. He has proved his signature on the charge sheet Exhibit 5, as Exhibit 5(1). Discussions and Decision :-
32. Learned counsel for the appellant has laid stress in his argument that the deposition of PW-4 is contradictory to the contents of the FIR as Jaggu's wife's name has not been mentioned in the FIR. She has also mentioned that it was dark at night. She has admitted in her cross-examination that when the appellant called her husband, she went out along with her children and her daughter and her niece witnessed the incident.
33. The argument submitted by the learned counsel for the appellant that the name of Jaggu's wife Torda Hadsa was not mentioned in the FIR, can be safely brushed aside. Moreover, PW-4 has categorically stated that a lamp was burning. The submission that the appellant could not have been recognized by the witnesses, holds no water. However, it has surfaced from the evidence of PW-4 that there was a quarrel relating to a land dispute between the appellant and her husband. She has indeed mentioned in her cross-examination that there was no earlier animosity between her husband and the appellant, but she has mentioned in her examination-in-chief as well as in her cross-examination that the appellant picked up a quarrel with her husband regarding landed property.
34. Learned counsel for the appellant has also laid stress in his argument that the Page No.# 13/20 appellant had no intention to kill as no previous animosity between both the parties and mens rea could be attributed to the appellant.
35. It has also been argued by the learned counsel for the appellant that the other eye- witnesses, i.e., the informant's daughter and her niece were not examined by the prosecution in support of her evidence.
36. It is true that the other eye-witnesses have not been examined, but at the same time, Section 134 of the Evidence Act, propounds that no particular number of witnesses is required to prove a fact. In this case, we have direct evidence of an eye-witness.
37. It has been held by the Hon'ble Supreme Court in Kartik Malhar (supra) that : -
"4. On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelyu Thevar's case (supra) and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not shaken by any adverse circumstances appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness. The Court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts, insist on the quality, and, not on the quantity of evidence."
***** ***** ***** ***** "12. As to the contention raised on behalf of the appellant that the witness was the widow of the deceased and was, therefore, highly interested and her statement be discarded, we may observe that the close relative who is a natural witness cannot be regarded as an interested witness. The term "interested" postulates that the witness must have some direct interest in having the accused somehow or the other convicted for some animus or for some other Page No.# 14/20 reason. In Mst. Dalbir Kaur and others v. State of Punjab, it has been observed as under :
"Moreover a close relative who is a very natural witness cannot be regarded as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. Such is not the case here,"
In Dalip Singh v. State of Punjab, it has laid down as under :
"A witness is normally" to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
This decision has since been followed in Guli Chand and others v. State of Rajasthan (supra), in which Vadevelu Thevars case (supra) was also relied upon."
38. I find force in the argument of the learned Additional Public Prosecutor for the respondent State.
39. No contradictions could be elicited through the cross-examination of PW-4. This reveals that PW4's evidence is consistent and she has not vacillated from her earlier statement. She Page No.# 15/20 can thus be held to be a sterling witness. She cannot be labelled as an interested witness.
40. It has also surfaced from the evidence of PW-4 that the appellant and the deceased had no animosity but at the time of the incident the appellant initiated the quarrel regarding immovable property.
41. It has been held by the Hon'ble Supreme Court in Markash Jajara (supra) that :
"14. It may be seen that the Trial Court as well as the High Court have heavily relied upon the statement of the daughter of the appellant - Sarani Boria (P.W.6) to hold him guilty of committing the murder of his son-in-law predominantly in view of his purported confession made before his daughter.
15. In our considered view, the statement of P.W.6 - Sarani Boria needs to be appreciated in its entirety. In her cross- examination, P.W.6 has candidly admitted that her husband was an alcoholic and he used to quarrel with her and also with the appellant after consuming alcohol. She has affirmatively deposed that the deceased used to ill-treat her after consuming alcohol."
***** ***** ***** ***** ***** "17. The appellant's motive at best was to prevent the deceased from misbehaving with his daughter after consuming alcohol. The manner in which the occurrence appears to have taken place inside the house, does Page No.# 16/20 indicate that the appellant lost his self-control on account of persistent provocation and suddenly thrashed his son-in-law with the bamboo stick. It is a case where provocation seems to be brewing up since the deceased shifted to the appellant's house. It acquired enormous gravity with each recurrence of humiliating stances of the appellant's daughter. The fatal occurrence was seemingly the final culmination of loss of the power of self- control. The fact that the deceased was living as a `ghar javai' with the appellant, sufficiently indicates that the appellant did not have any pre- meditated intention to commit the murder of his son-in-law. But for the continuous harassment of the appellant's daughter by the deceased who was a habitual drunkard, the appellant would not have lost his senses suddenly. The simmering discontent of a frustrated and hapless father unfortunately led him to strike the deceased with a bamboo stick. The series of provocative acts attributable to the deceased indeed laid the foundation of sustained provocation.
18. In the facts and circumstances of the present case, as noticed above, it appears to us that the act of the appellant in causing injuries to the deceased falls within the expression of `culpable homicide' which does not amount to `murder'. We hold accordingly. The impugned judgments of the Trial Court as well as the High Court are modified to that extent."
42. In this instant case, it has surfaced from the evidence that there were no earlier disputes between the appellant and the deceased but at the time of the incident, the Page No.# 17/20 appellant armed with a dao marched towards the victim's house and started the quarrel. There is no instance of anger brewing up due to disagreement between brothers. Both the appellant and the victim had no animosity.
43. In this case at hand, the presence of corpus delicti cannot be denied. PW-1, PW-2, PW-3, PW-4 and PW-6 saw the blood-smeared body of Gopin. The weapon of offence was seized and PW-3 has proved the seizure list. The MO has opined that the injuries sustained by the victim were sharp cut injuries. The eye witness PW-4 has stated that the appellant dealt blows on her husband with a dao. The cross-examination by the prosecution of the hostile witnesses is not at all required to be taken into consideration to connect the appellant to the crime as the evidence of the eye-witness (PW-4) that the appellant committed the offence, is sufficient.
44. Although PW-1 and PW-2 are declared as hostile witnesses, their evidence clearly depicts that the incident occurred at around 7:30 p.m. and Gopin was found injured at that time on the last day of Holi. PW-3 has also categorically stated that the incident occurred on the last day of Holi.
45. The evidence of PW-7 and PW8 did not support the prosecution case. However, the evidence of PW-6 is direct evidence as per Section 60 of the Evidence Act.
46. The evidence clearly reveals that the informant witnessed the incident. There is direct evidence that the appellant killed the deceased with a dao, which was seized in presence of PW-3, who has proved his signature on the seizure list relating to seizure of dao as Exhibit 1(1). The other two seizure witnesses have affixed thumb impressions on Exhibit 1. This Exhibit 1 has also been proved by the Investigating Officer, Sri Nitai Ch. Rai, who deposed as Page No.# 18/20 PW-9 that during investigation he seized the dao from the place of occurrence in presence of the witnesses. He has proved the said seizure list as Exhibit 1 and his signature on the seizure list as Exhibit 1(2). Thus, there is uncontroverted evidence that the deceased was killed with a dao and the dao was seized in presence of PW-3, PW-6 and PW-7 by PW-9. PW- 6 and PW-7 have testified that they have affixed their thumb impressions on the seizure list (Exhibit 1).
47. The evidence of PW-3 is also corroborated by the evidence of the Medical Officer, who has affirmed that the injuries sustained by the deceased were sharp cut injuries.
48. The medico legal report proved as Exhibit 3 clearly reveals that the Postmortem was performed on 17.03.2014 at 1.10 pm, and according to the witnesses PW-1, PW-2, PW-3, PW-6 and PW-7, the incident occurred in the previous evening i.e. on 16.03.2014, at the time of Holi.
49. Learned counsel for the appellant tried to elicit contradiction that PW-4 did not mention in her initial statement about the burning lamp at the time of the incident but the trends of cross examination reveal that no contradictions could be elicited as per Section 145 of the Evidence Act vis-à-vis Section 162 of CrPC.
50. The appellant is the brother-in-law of PW-4. A burning lamp is not required to identify a relative in the evening.
51. In the wake of the foregoing discussions, it is held that there is overwhelming evidence that the appellant caused the fatal injury on the deceased.
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52. It is further argued by the learned counsel for the appellant that it has emerged through the evidence that no animosity was prevalent between the families. PW-4 has deposed that immediately before the attack, the appellant picked up a quarrel with the deceased relating to landed property.
53. The evidence of PW-4 and PW-6 depicts a quarrel, which was initiated by the appellant. Learned counsel for the appellant has relied on the decision of the Hon'ble Supreme Court in Markash Jajara's case (supra) and has stated that this case is also a case of culpable homicide not amounting to murder as the death was result of a quarrel between brothers. It has already been held in the foregoing discussions that the eye witness, PW-4 has categorically stated that the appellant came to their house at about 10 p.m. and called out the deceased. He was already armed with a dao and he picked up a quarrel with regard to landed property.
54. It has also been held in the foregoing discussions that all the witnesses have stated that there was no acrimonious relationship between the brothers and the ratio of decision in Markash Jajara's case (supra) is not applicable to this case. In Markash Jajara's case, there was simmering discontent of a frustrated and hapless father, who killed his son-in-law and the series of provocative acts of the son-in-law attributed to his death.
55. However, this instant case is not a case where the appellant was provoked by the deceased in any manner. He was the one, who picked up the quarrel and attacked the deceased with a sharp weapon. Unlike the submission of learned counsel for the appellant, this is not a case of prevalent land dispute but a case wherein the appellant picked up a fight Page No.# 20/20 regarding some immovable property. The intention of the appellant is very clear in this case. Learned Trial Court has spelt out sound reasonings while deciding this case. We, therefore, record our concurrence to the findings of the learned Trial Court with a slight modification.
56. As the incident took place within the precincts of the deceased and the appellant's house, it is held that no offence under Section 448 of IPC has been made out and the appellant is acquitted from the charges under Section 448 of IPC. However the conviction and sentence of the appellant under Section 302 of IPC is upheld.
57. In terms of the above observation, this Criminal Appeal is disposed of.
58. Send back the Trial Court Records.
57. We appreciate the assistance provided by the learned Amicus Curiae and recommend for payment of the honorarium.
JUDGE JUDGE Comparing Assistant