Gauhati High Court
Abdul Subhan & Anr vs The State Of Assam on 15 December, 2017
Author: Nelson Sailo
Bench: Ujjal Bhuyan, Nelson Sailo
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No.215 of 2013
Sri Abdul Rahman
Son of Late Hesabuddin
Resident of Bhatipara Natun Basti
Police Station- Jogighopa
District of Bongaigaon,
Assam.
.......Appellant.
-Versus-
The State of Assam
....... Respondent.
Criminal Appeal No.199 of 2013
1. Abdul Subahan Son of Late Hesabuddin
2. Nasiran Begum W/o Abdul Subahan Both are residents of Bhatipara Natun Basti Police Station- Jogighopa District of Bongaigaon, Assam.
.......Appellants.
-Versus-
The State of Assam ....... Respondent.
Page 1 of 17
BEFORE
THE HON'BLE MR. JUSTICE UJJAL BHUYAN
THE HON'BLE MR. JUSTICE NELSON SAILO
For the Appellants : Mr. AR Sikdar, Advocate
For the Respondents : Mr. K Konwar, Addl.P.P.
Date of Hearing : 07.12.2017
Date of Judgment : 15.12.2107
JUDGMENT AND ORDER( CAV)
(Nelson Sailo, J )
These two criminal appeals have been preferred by the appellants against the Judgment and Order dated 20.05.2013 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.60(J) of 2006 convicting the appellant in Criminal Appeal No.215 of 2013 under Section 302/34 of the Indian Penal Code, 1860 (IPC) and sentencing him to undergo rigorous imprisonment for life while convicting the two appellants in Criminal Appeal No. 199 of 2013 under the said provisions and sentencing them to rigorous imprisonment for 10 years. Both the sentences are also Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 2 of 17 with a fine of Rs.1000/- each and with a default clause. Since the appeals are against the common Judgment and Order dated 20.5.2013, they are taken up together for disposal.
2. Heard Mr. AR Sikdar, learned counsel appearing for the appellants in both the cases and also heard Mr. K Konwar, learned Additional Public Prosecutor, Assam appearing for the State.
3. The case of the prosecution for the purpose of disposal of the appeals may briefly be noticed at the outset. A written ejahar was submitted by Smti Joynab Bhanu, wife of the deceased on 9.12.2004 before the Officer-In-Charge, Joghigopa police station to the effect that around 10 pm on 08.12.2004, while her husband was not at home, the appellants alongwith three other accused persons were hurling abuses at her using filthy language and to which she asked them as to why they were behaving in that manner. Her husband in the meantime arrived home and on his query, she narrated the matter to him. Upon being informed as to what had happened, her husband came out to the verandah and requested the accused persons not to repeat such activity again in future. The accused persons than chased her husband in order to beat him up. While two of the appellants, namely, Nasiran Begum and Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 3 of 17 Abdul Subahan held her husband, the third appellant stabbed him with a "khapar" (spear) in his chest causing grievous injury to him. When she and others at home tried to resist the accused persons, they also attacked them with lathis, dagger and dao which were in their hands. Thereafter, her injured husband was taken to Jhogigopa Police Station with the help of their neighbours whereupon the police sent them to Goalpara Civil Hospital. However, her husband died on the way to the Hospital, while the remaining family members who were injured were being treated in the Hospital. On the basis of the first information, Joghigopa PS Case No. 70 of 2004 under Section 326/302/34 IPC was registered and investigation conducted.
4. Upon registration of the case, five accused persons including the three appellants were arrested and the charge sheet was filed by the police. Being a sessions triable case, it was committed to the Copurt of Sessions, Bongaigaon where charge was framed against the accused persons under Section 302/34 of the IPC to which they pleaded not guilty and claimed to be tried. Thus the trial commenced.
5. During trial, the prosecution examined as many as 16 prosecution witnesses. On closure of the prosecution evidence, the accused persons Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 4 of 17 were examined under Section 313 of the Cr.P.C. Thereafter, the defence examined one defence witness. After hearing the matter, the learned Sessions Judge, Bongaigaon vide Judgment and Order dated 20.05.2013 convicted and sentenced the appellants as has been aforementioned. As for the remaining two accused persons i.e., Anowara Begum and Abida Akhtar they were acquitted.
6. Mr. AR Sikdar, learned counsel for the appellants submits that as can be seen from the deposition of PW-2, the alleged night of occurrence i.e., 08.12.2004 was a dark night and therefore, the prosecution witnesses could not have accurately seen that it was indeed the appellants who had attacked the deceased which resulted in his death. That apart, he submits that all the prosecution witnesses were family members of the deceased person of course except the Doctor who had conducted the medical examination and the post mortem and the case investigation officers. Therefore, the prosecution witnesses being interested witnesses, the impugned Judgment and Order convicting the appellants cannot be sustained. He also submits that although the deceased after the alleged incident was taken to the hospital by two persons apart from his relatives, the prosecution failed to examine them during the trial and as such, in the absence of examination of the independent witnesses, the impugned Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 5 of 17 conviction and sentence passed by the Ld. Trial Court cannot be sustained.
7. Mr. AR Sikdar, the learned counsel further submits that pursuant to the alleged incident, the prosecution failed to collect blood samples for FSL examination and therefore, without ascertaining that the blood that was found indeed belonged to the deceased person, the impugned conviction and sentence is vitiated and cannot be sustained. He submits that investigation conducted by the police was most perfunctory rendering the case of the prosecution most untrustworthy and unacceptable. Therefore, the learned Trial Court under the given circumstances could not have convicted and sentenced the appellants and as such, the impugned Judgment and Order should be set aside and the appellants acquitted.
8. Mr. AR Sikdar further submits that even if the learned Trial Curt found the case of the prosecution to be acceptable, there was no premeditation on the part of the appellants in causing injury upon the deceased. He submits that from the deposition of the prosecution witnesses, it can be seen that there was no enmity between the parties concerned and there prevailed good atmosphere. However, on the day of the alleged incident, on account of sudden fight, the deceased was injured Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 6 of 17 and that being the position, Exception 4 of Section 300 of the IPC would be attracted. Consequently, the appellants should have been convicted by the trial Court under Section 304 Part-II of the IPC. He submits that since the appellants did not act in a cruel or unususal manner; no previous enmity between the parties concerned; and there being only one injury upon the deceased person, the aforementioned Exception Clause is fully attracted. He finally submits that since the appellants have already been in jail for about 5 years now, Court may consider passing appropriate orders in favour of the appellants.
9. Mr. K Konwar, learned Additional Public Prosecutor in response to the submissions made by the learned counsel for the appellants submits that the post mortem report of the medical officer concerned clearly provides that there was a deep penetrating wound over the right front chest of the deceased. The external wound was found to be of elliptical shape with inverted margin of the size 5" to 1.5" situated at 5.5" right to midline 12 cm inferior to midpoint of right clavicle. The depth of the wound was also found to be upto right chest cavity. Consequently, it was pointed out that the cause of death was due to haemorrhage and shock resulting from injury sustained in the body which was ante-mortem in nature. The Medical Report of PW-14 upon examining the injured persons Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 7 of 17 besides the deceased also clearly left no manner of doubt that the injuries were caused by sharp cutting weapon. Therefore, considering the evidence laid by the prosecution witnesses, the appellants were indeed responsible for injuries upon the deceased which led to the death of the deceased.
10. Mr. K Konwar by referring to the deposition of PW-5 submits that the said witness, who is the son of the deceased, deposed that the incident took place in their veranda. By further referring to the sketch map of the place of occurrence as prepared by the case Investigating Officer, he submits that house of the deceased and the PW-2 are quite nearby compared to the house of the accused persons who were also living in the same compound. He submits that considering the distance between the house of the victim and the PW-2, there was no reason to disbelieve her version that she saw the accused persons inflicting the injury upon the deceased on that fateful night. He submits that even on a dark night, it is indeed possible for close relatives to identify each other and moreover when there is direct evidence, the same has to be accounted for by leaving behind all other probabilities. He therefore submits that from the appreciation of the evidence led by the prosecution witnesses, there is a clear chain of events which clearly points to the culpability of the Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 8 of 17 appellants without any doubt. He submits that the learned Trial Court did not make any mistake in convicting and sentencing the appellants as above.
11. Against the submissions of Mr. AR Sikdar as regards the attraction of the Exception 4 of Section 300 IPC, Mr. K Konwar submits that considering the facts and circumstances involved, there is no occasion for applying the exception Clause. He submits that from the evidence led by the prosecution witnesses, the deceased was caught hold off by the two appellants viz; Nasiran Begum and Abdul Subhan while Abdul Rahman stabbed him with a spear in his chest. It is therefore clear that unless the accused appellants were able to show that they did not take any undue advantage over the situation, the plea of sudden quarrel and no premeditation cannot be the only ground for invoking the Exception Clause of the IPC. In support of his contention, the learned Additional P.P. relies upon the decision of the Apex Court in the case of Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat (2003) 9 SCC 322. The learned P.P. thus submits that no interference is called for by this Court on the order of conviction and sentence passed by the learned Trial Court. Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 9 of 17
12. Mr. AR Sikdar in a brief response to the submissions made by the learned Addl. P.P. submits that upon appreciation of the evidence led by the prosecution as well as the sole defence witness what can be seen is that there was no cruelty or enmity amongst the parties concerned. In fact, they were said to have cordial relation and therefore under such circumstances, Exception 4 of Section 300 IPC was clearly attracted. In this connection, he relies upon the decision of the Apex Court rendered in the case of Sukhvir Singh Vs. State of Haryana (2002)3 SCC 327 and Keshav Lal Vs. State of M.P. (2002)3 SCC 254. In support of his contention that non-examination of independent witnesses would adversely affect the prosecution's case, Mr. AR Sikdar relies upon the Apex Court decision rendered in the case of State of Punjab Vs. Harbans Singh & Anr. (2003)11 SCC 203.
13. We have heard the submissions advanced by the learned counsel for the rival parties and have perused the materials available on record including the LCR.
14. PW-3 who is the daughter of the deceased in her examination-in- chief deposed that at around 10 pm on 08.12.2004, her father arrived at home from the market whereupon the accused appellant Abdul Rahman Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 10 of 17 stabbed him in his chest with a spear and then he fell down on the ground. She deposed that Abdul Subhan and Nasiran Begum were holding her father while the accused appellant Abdul Rahman stabbed him. In her cross examination, she deposed that the night of the incident was a moonlit night. PW-4 who is also the daughter of the deceased in her examination-in-chief deposed that she saw Abdul Rahman stabbing her father in his chest with a spear. She also deposed that accused appellant Abdul Subhan and Nasiron had caught hold of her father while he was being stabbed by Abdul Rahman. The deposition of the said two prosecution witnesses could not be shaken during their cross examination but in fact it is further fortified by the deposition of PW-12. PW-12 is son of the deceased Abdul Samad and sibling of PW-3 and PW-4. In his examination-in-chief, he deposed that Abdul Rahman stabbed his father in the chest with a spear while Abdul Subhan and Nasiron caught hold of him. When he tried to resist, he was struck in the head by Abdul Rahman with the spear. He also deposed that the accused appellants also assaulted his elder sisters and younger brother with lathis. Therefore, it can be seen that the aforesaid prosecution witnesses were eye witnesses to the incident and their statements are corroborated besides the deposition of other prosecution witnesses. Medical report prepared by PW- 13 and PW-14 also confirm the injury sustained by family members of the Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 11 of 17 deceased besides himself. Considering the evidence led by the aforementioned prosecution witnesses, non examination of an independent witness cannot be an impediment for convicting the accused persons when the deposition of the eye-witnesses are not only corroborated but has not been shaken in the cross examination. Besides, they were natural witnesses. It is not the legal position that credible evidence of a witness is to be discarded only because he is a relative of the victim. What is required is that such evidence should be subjected to scrutiny or should be scanned more carefully as held by the Apex Court in Gali Venkataiah Vs. State of Andhra Pradesh (2007)1 SCC 699. Therefore, we find the case of State of Punjab Vs. Harbans Singh & Anr. (supra) as relied upon by the learned counsel for the appellants to be not applicable to the present case.
15. As regards the attraction of Exception 4 of Section 300 IPC, it can be seen that Apex Court in the case of Dhirajbhai Gorakhbhai Nayak (supra) held as follows:-
"The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 12 of 17 there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception
1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation,
(b) in a sudden fight; (c) without the offender's having taken undue Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 13 of 17 advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. "
16. From the materials available on record, it can be seen that the deceased had reprimanded the accused persons including the appellants not to use filthy language against his family and for which reason an argument broke out and in that process he was caught by two of the Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 14 of 17 appellants while the third appellant i.e. Abdul Rahman stabbed him on his chest. As can be seen, besides sudden quarrel and there being no pre- meditation, the offender must not have taken undue advantage or must not have acted in a cruel or unusual manner. However, the facts revealed that undue advantage was being taken against the deceased and therefore in that view of the matter, in our considered opinion, the Exception Clause 4 of Section 300 IPC would not be attracted to the instant case, particularly in respect of appellant Abdul Rahman. Therefore, the decision relied upon by the learned counsel for the appellants i.e. Keshav Lal (supra) and Sukhvir Singh (supra) are found to be not applicable to the instant case in so far appellant Abdul Rahman is concerned.
17. From the Judgment and Order dated 20.5.2013 and perusal thereof, it is noticed that the learned Trial Court while convicting the appellants under Section 302/34 IPC has sentenced Abdul Subhan and Nasiran Begum to rigorous imprisonment of 10 years with fine default clause but while convicting the appellant Abdul Rahman under Section 302/34 IPC and sentensed them to rigorous imprisonment for life with fine with a default clause. Section 302 of the IPC however provides that whoever commits murder will be punished with death or imprisonment for Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 15 of 17 life and shall also be liable to fine. Therefore, the learned Trial Court could not have sentenced the appellants Abdul Subhan and Nasiran Begum to rigorous imprisonment for 10 years under Section 302. However, as we have come to a finding that it was Abdul Rahman who had assaulted the deceased with spear causing upon him grievous injury resulting in his death, the conviction and sentence against him is upheld.
18. As for the other two appellants, Abdul Subhan and Nasiran Begum, what can be appreciated from the evidence on record is that although they held the deceased while Abdul Rahman struck him with a spear, there was no intention on their part to kill the deceased. This aspect of the matter perhaps was also noticed by the Ld. Trial Court as it had convicted and sentenced them to a rigorous imprisonment of 10 years with fine under Section 302/34 IPC as aforementioned. Therefore, considering the role of the two appellants, Abdul Subhan and Nasiran Begum, we are of the considered view that ends of justice would be met if their conviction and sentence is altered to that of Section 304 Part-II of the IPC. It is ordered accordingly.
19. In the result, the two appellants upon being convicted under Section 304 Part-II, their sentence is modified to a rigorous imprisonment Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 16 of 17 for 7 (seven) years while the fine and default clause as imposed by the Ld. Trial Court will remain unchanged. It is needless to mention that the detention period already undergone by the two appellants shall be set off.
20. With the above direction, both the criminal appeals are disposed of.
21. Registry to send back the LCRs immediately.
JUDGE JUDGE
Nivedita
Crl.A & Crl.A(J) Nos.215/2013 and 199 of 2013 Page 17 of 17