Gauhati High Court
Jaffar Ali And Anr vs State Of Assam And Anr on 28 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 435
Author: S. Hukato Swu
Bench: S. Hukato Swu
Page No.# 1/14
GAHC010268172017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 111/2017
1:JAFFAR ALI and ANR
2: SULTAN ALI
BOTH S/O INNAS ALI
R/O VILL. RUPAHI BHAKAT GAON
P.S. RUPAHIHAT
DIST. NAGAON ASSAM
PIN 78212
VERSUS
1:STATE OF ASSAM and ANR
REPRESENTED BY PP, ASSAM
2:WAHID UZ-ZAMAN
S/O ABBAS UDDIN AHMED
THANA ROAD RUPAHI
P.S. RUPAHIHAT DIST. NGAON
PIN 78212
Advocate for the Petitioner : MR.T H HAZARIKA
Advocate for the Respondent : MS. S JAHAN(ADDL.PP, ASSAM)
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI HONOURABLE MR. JUSTICE S. HUKATO SWU Date : 28-02-2020 Page No.# 2/14 JUDGMENT & ORDER M.A. Ali, J This appeal is directed against the judgment and order dated 21.12.2016 passed by the learned Sessions Judge, Nagaon, in Sessions Case No. 06(N)/2004. By the said judgment, the learned Sessions Judge convicted the appellants under Section 302/448 IPC R/W Section 34 IPC and sentenced them to imprisonment for life and fine of Rs. 1,000/- each with default stipulation under Section 302 IPC. The appellants were further sentenced to rigorous imprisonment for one month under Section 448/34 IPC.
2. As per prosecution case, on 13.10.2002, at about 8 AM in the morning, when the victim Sarifuz Zaman was taking tea in the tea stall of Abdul Latif, the accused/appellants entered the tea stall and brutally killed Sarifuz Zaman by inflicting multiple stab injuries with dagger. After committing the offence, both the appellants went to the police station, which was nearby and surrendered themselves before police. Hearing commotion, the members of the victim's family arrived there, who found the victim lying in a pull of blood in the tea stall. The brother of the victim Wahiduz Zaman (PW-2) lodged the FIR, on the basis which, police registered Rupahihat P.S. Case No. 143/2002 under Section 448/302/34 IPC. During investigation, police arrested the appellants, seized the weapon of offence and other incriminating articles, recorded statement of the witnesses, prepared inquest report and sent the body for postmortem examination.
3. The postmortem examination was conducted by Dr. Syed Makinur Rahman (PW-16), who found the following injuries on the body of the victim.
"1. Incise cut injury over the forehead 1" above the right eyebrow Size 4" X ½"
bone exposed.
2. Incise cut wound over the right parietal region of scalp, size 4" x 2 ½" x ½"
over right ear also cut incised.
3. Two numbers incise wound over the right parietal scalp, 1" apart size4 of each 3" x 2" of bone exposed.
Page No.# 3/14
4. Two Nos. incise cut wounds over the occipital region of scalp 1" apart, size of each 3" x 2" scalp bone exposed.
5. One oblique incised cut wound over the lips extended from the lip to the chin, size 2 ½" x ½", both upper and lower jaw exposed.
6. One incised wound over the left side of anterior chest wall at 2 nd and 3rd ribs, size 2" x ½" x ½".
7. 3 Nos. of incise wound over the anterior abdominal wall
(a) at epigestric region, size 1" x ½" x ½".
(b) At left flank, size 3" x 2" x depth t the abdominal cavity. Part of intestine came out through wound.
(c) At right flank, size 2" x 2", intestine came out through abdominal wound.
Multiple incise wounds over the whole body detected."
In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of injuries sustained.
4. Confession of the accused/appellant Jaffar was also recorded by Judicial Magistrate (PW-15). In the confessional statement recorded by PW-15, the appellant Zaffar stated interalia as under:
"............................... .................. I went to the market near the rail gate to have tea. But I had a 'paan' instead of having tea. In the meantime, Sarif reached the shop from his home and sat down in the shop to have tea. I saw some 200 (two hundred) persons carrying bamboo and several types of weapons, proceeding towards our plot of land. Since I could not fight with them alone, so I stabbed Sarif in the chest with a dagger which I had been carrying with me from the previous night. As a result, Sarif fell down on the ground. I caused injury to him with dagger on his head, abdomen and various parts of his body. He was bleeding incessantly and seeing it I got utterly shocked and I thought that he would die now. I released him an caused injury to him Page No.# 4/14 again. Seeing him bleed, I learnt that Sarif had died. When the persons, who were waiting there with lathis in their hands, rushed at me, I got frightened and went in a run to Rupohi P.S. situated nearby. My younger brother Sultan, who was near the rail gate, got scared when he saw me going to the P.S. in a run and he too entered the P.S. because many villagers, armed with several types of weapons, chased after me. It is true that I killed Sarif as the latter was trying to build a house over our land as a result of which the members of my family had been very distraught since many days. My younger brother Sultan Ali is innocent because when I stabbed Sarif with dagger, Sultan Ali was near the rail gate. He did not come to the shop to have tea................. .............."
5. On completion of the investigation, charge sheet was laid against three accused persons, namely, Dr. Abdul Hai and the present appellants. The offence being triable exclusively by the court of Sessions, learned Magistrate having taken cognizance, committed the case to the court of Sessions. Learned Sessions Judge framed charges against the appellants under Section 302/324/448/506 IPC R/W Section 34 IPC, to which, all of them pleaded not guilty.
6. In course of trial, 16 witnesses were examined by the prosecution in order to bring home the charges. After completion of the evidence, statement of the accused persons were recorded under Section 313 CrPC, wherein the appellants, Sultan as well as Dr. Abdul Hai pleaded innocence. However, appellant Zaffar admitted his guilt and stated that having found the victim in the tea stall, he inflicted injury to him by dagger and surrendered to the police. On appreciation of the evidence, learned Sessions Judge convicted the present appellants under Section 302/448 IPC R/W Section 34 IPC. However, acquitted the co-accused, Dr. Abdul Hai and set him free.
7. Aggrieved, the appellants has preferred the instant appeal.
8. We have heard learned counsel for the appellants Mr. T.H. Hazarika and learned Addl. P.P., Ms. S. Jahan.
Page No.# 5/14
9. Learned counsel Mr. T.H. Hazarika while vehemently arguing for acquittal of the appellant Sultan Ali, submitted, that though there were some evidence including his confession to implicate the appellant Zaffar with the commission of the offence, the appellant Sultan was not involved in the offence and he ought not to have been convicted with the aid of Section 34 IPC, inasmuch as, in the confessional statement, the appellant Zaffar, had clearly stated that he alone inflicted the injuries to the deceased, which led to his death. Further submission of Mr. Hazarika was that even the appellant Zafar could not have been convicted under Section 302 IPC, inasmuch as, he committed the offence under sudden provocation and therefore, at best appellant Zaffar could have been convicted under Section 304 IPC.
10. Supporting the impugned judgment of conviction and sentence, learned Addl. P.P., Ms. S. Jahan, contended, that prosecution evidence were sufficient to prove the charges against both the appellants beyond reasonable doubt and as such, no interference with the impugned judgment is called for.
11. We have considered the submissions made by the learned counsel for the appellants and also the learned Addl. P.P. and also scrutinized the evidence brought on record.
12. On our assessment of the evidence and materials brought on record, we find that PW-4, PW-6, PW-7, PW-8 & PW-12 were the eye witnesses of the occurrence and leaned trial court also relied upon the testimony of the said witnesses. Therefore, we feel it apposite to have a relook on the testimony of these five vital witnesses.
13. PW-4, Rustom Ali, who happens to be a home guard, deposed that when he was coming from police station to repair his shoes, he heard sound in the shop of Latif (father of PW-6) and when he reached infront of the shop of Latif, he had seen Zaffar inflicted blows with a dagger on the abdomen of Sharif, but Sharif tried to catch hold of the dagger and as a result of which there was bleeding from his hands. Receiving the injury Sharif fell down on the ground and Zaffar again gave blows on his head by dagger. Sultan also hit him with dagger. He Page No.# 6/14 tried to resist Sultan, but Zaffar wanted to assault him and as such, out of fear he came out from the shop. He further stated that Zaffar and Sultan, after killing the victim, went to the police station and surrendered before the police.
14. PW-6, Sikandar Ali, son of Abdul Latif (owner of the tea stall) testified that the incident took place at about 7/7.30 AM in the morning. At the time of incident, he was in the tea stall. According to him, the victim Sarifuj Zamman was also in his tea stall and asked him for a cup of tea. The moment he went to bring tea for Sarifuj immediately he heard hue and cry and having turn around, he had seen that the accused Zaffar and Sultan were inflicted injuries to the victim Sarifuj Zaman by means of knifes. He further stated that Sarifuj Zamman died on the spot inside his shop in his presence. He further stated that after inflicting injuries, Zaffar and Sultan went towards the police station and out of fear he also came out of the shop and within 10 to 20 minutes, police arrived there. He also stated to have signed the seizure list (Ext.3). On a quarry by the court, this witness further stated that Sultan and Zaffar both were armed with knife in their hands.
15. PW-7, Rahman Ali deposed that on the date of occurrence at about 7 AM, while he was taking tea in the tea stall of Abdul Latif, he had seen Zaffar and Sultan inflicting injuries to Sarifuj Zamman by means of dagger and out of fear he came out of the tea stall.
16. PW-8, Hatem Ali deposed that at about 7.30/8 AM in the morning while he was taking tea in the tea stall of PW-6, son of Abdul Latif, the accused Zaffar also came to the tea stall. He also stated to have seen Sultan coming inside the tea stall and both of them inflicted injuries to Sarifuj Zamman by hitting him with knife and khukri and out of fear he went out of the tea stall. He also stated that his statement was recorded by Magistrate, which has been proved as Ext. 5. Ext. 5. The statement of this witness recorded under Section 164 CrPC by Magistrate shows that he made similar statement before the Magistrate, which was fully consistent with his evidence in court.
17. Close on the heal on the oral testimony of PW-4, PW-6, PW-7, PW-8, the PW-12 Zahur Ali also testified that while he was in the tea stall of Abdul Latif, he had seen Sarifuj Zamman (victim) also sitting in the tea stall. According to him, there were many other customers taking Page No.# 7/14 tea at that point of time. Suddenly, he heard hue and cry and saw Sultan and Zaffar hitting Sarifuj Zaman by means of dagger. Seeing the occurrence, out of fear he also came out of the tea stall. He further stated that immediately, after the occurrence, both Sultan and Zaffar went towards the police station with the dagger in their hands. Sarifuj Zaman was shifted to hospital. Later on he heard that Sarifuj Zaman expired.
18. All these five eye witnesses were subjected to lengthy cross examination, but on our careful scrutiny of the cross examination, we find that nothing material could be elicited during cross examination of these five eye witnesses, who have candidly deposed that they have seen both the appellants inflicting injuries to the victim Sarifuj in the tea stall of PW-6 and the oral testimony of all these five vital witnesses remained unshaken. The presence of these witnesses in the tea stall was also not challenged during cross examination. We also take note to the previous statement of PW-2, PW-4 & PW-8 recorded under Section 164 CrPC, which transpires that they have made similar and consistent statements before the Magistrate and as such, the oral testimony of these five witnesses in court appears to be fully consistent and coherent.
19. PW-3 stated that at about 7 AM in the morning, he went to Rupahi Tiniali to a doctor and while coming back, he had seen people gathered at a shop and there was hue and cry. Though, this witness was reluctant to say anything in his examination-in-chief, implicating the appellants for reasons best known to him, during cross examination of this witness, it was elicited that he was also present at the place of occurrence. Because in cross examination he admitted, that while he was sitting in the shop, he took half cup of tea and Zahur (PW-12) and Rahmat (PW-7) were also sitting infront of him. He also stated that he had seen Zaffar coming to the tea stall and took sit infront of Zahur and Rahman. He further stated, that at that point of time, Sultan took out one weapon, like dagger and asked 'where will you go?' Then immediately he left the place and proceeded to his house. He further stated that he saw from a little distance that Sharif was being taken in an ambulance. PW-5, testified that he had a shop near the place of occurrence and while he was in his shop at the time of occurrence, he heard hue and cry, but he did not go to the place of occurrence leaving his shop. He further stated, that he had seen from his shop that Zaffar and Sultan were coming out form the tea stall of Sikander. He also stated that he had seen Sarifuj Zaman, being taken out of the tea stall in injured condition by some people and thereafter an ambulance came and took Sarifuj from there. Later on he came to know that Sarifuj Zaman died. During his cross examination, it Page No.# 8/14 was elicited that his shop was adjacent to the shop of Sikandar (PW-6), where the occurrence took place.
20. Both the PW-3 & PW-5 were declared hostile by the prosecution. The law relating to evidentiary value of hostile witness is no longer res-integra. It is the settled position that the testimony of hostile witness cannot be rejected enblock merely because of the prosecution disowning their evidence or declaring them hostile, rather, the evidence of hostile witness to the extent found dependable can very well be taken into consideration. (See Ramesh Harijan Vs. State of U.P., AIR 2012 (SC) 1979: Yomeshbhai Prashankar Bhatt Vs. State of Gujrat, AIR 2011 (SC) 2383).
21. PW-1 is the wife of the victim. PW-2 is the brother and PW-10 & PW-11 are two sons of the victim and all of them were post-occurrence witness and according to them, having come to know about the occurrence from one Minar, they came to the place of occurrence and found the victim lying in a pull of blood with injuries on his body. PW-1 stated that having come to the place of occurrence, she had seen injuries on the body of the victim and the people assembled there told them that Sultan and Zaffar had killed him. The PW-2 stated that on reaching the place of occurrence, he had seen the victim Sarifuj Zaman lying on the ground and the accused Zaffar and Sultan were waving their swords in the air and they were in a furious mode. Having seen them, initially, he did not go near the body and some of the persons assembled there also resisted him from going there. He further stated, that he had also seen the accused Zaffar and Sultan going towards the thana road. PW-11 also stated that having come to the place of occurrence, he had seen Sultan and Zaffar coming out from the tea stall and going to the police station. He also stated that both of them were waving dagger. However, this witness was confronted with his previous statement made before police and also confirmed through the Investigating Officer, which shows that he did not state before police, that he seen that Zaffar and Sultan coming out of the tea stall and going towards police station. Be that as it may, all these four prosecution witnesses being PW-1, PW-2, PW-10 & PW-11, who were close relation of the deceased did not have the opportunity to see the occurrence, as they admittedly came after the occurrence. Although, the PW-3 & PW-5 were declared hostile, the testimony of PW-3 & PW-5, however supported the prosecution version, as deposed by the eye witnesses atleast to the extent of the presence of the appellants at the Page No.# 9/14 place of occurrence and the victim sustaining injury as well as the presence of the eyed witnesses.
22. The PW-9 was, however, hearsay witness. The PW-13, the Investigating Officer stated, that while he was posted as second officer in Rupahihat police station on 13.10.2002, at about 10.5 AM, two persons came running to the police station armed with bloodstained dagger and confessed before the officer-in-charge Ibrahim Ali that they had committed murder of Sarif in the tea stall of Latif, which was infront of the police station. According to him, the officer-in- charge of the police station made a GD entry vide No. 250 dated 13.10.2002 and entrusted him to investigate the matter. The GD entry has been proved as Ext. 8. He further stated that he had arrested both Zaffar and Sultan in the police station and thereafter conducted inquest on the body of the deceased and sent the bloodstained dagger for forensic examination. He also stated to have seized the dagger vide Ext. 9 & Ext. 10. The Ext. 8, GD entry No. 250 made on 13.10.2002 at 8.5 AM also supports the oral testimony of PW-13 as regards the appellants appearing before the police station with the weapon of offence. Thus, the oral testimony of the PW-13 and the GD entry (Ext.8) corroborated the eye witnesses' account that, after committing the offence the appellants duo surrendered in the police station, situated nearby.
23. The Judicial Magistrate, who recorded the confessional statement of the appellant Zaffar has been examined as PW-15. It transpires from the evidence of PW-15, the Judicial Magistrate as well as the confessional statement (Ext.11), that all necessary precautions were taken by the learned magistrate in compliance with the Section 164 CrPC while recording the confession of the appellant Jaffar and having been satisfied that the accused was making the confession voluntarily, his statement was recorded. In fact, the accused/appellant has also admitted to have made the confession, during examination under Section 313 CrPC. Learned counsel for the appellant has also not challenged the confessional statement. On scrutiny, we find that the confessional statement was made voluntarily.
24. In the confessional statement (Ext.11) made by the accused Zaffar, he stated that he alone caused the death of the victim Sarifuj and the co-accused Sultan being his brother was not involved in the offence and he went to the police station along with him out of fear.
Page No.# 10/14 Learned counsel for the appellant contended that the confessional statement made by the accused/appellant has to be taken into consideration as a whole and if the confession of the appellant made under Section 164 CrPC is taken into account as a whole, it would show, that the accused Sultan was not involved in commission of the offence and it was only Zaffar, who had inflicted the injuries to the victim, which caused his death. It was also submitted by the learned counsel for the appellant referring to the confessional statement, that there was no intention to cause death, and the appellant Zaffar inflicted the injury to the victim out of provocation and as such the act of the appellant shall not amount to murder.
25. From the evidence of PW-15 and the confessional statement (Ext. 11), we find that the confessional statement was properly recorded and the same has not suffered from any infirmity. It is settled principle of law that a confession to be relied upon, it must stand the twin test of voluntariness and truthfulness. Having taken note of the evidence of PW-15 and the confessional statement, we have no hesitation in our mind to hold that the confession was made by the accused voluntarily. The question is now as to whether such confessional statement was true or not. All the eye witnesses have stated in one voice, that both the appellants inflicted injuries to the victim by sharp weapon causing his death and after the occurrence, both of them surrendered before the police, in the police station, which was in the proximity of the place of occurrence. The evidence of PW-13 and the GD entry (Ext.8) also lent support to the evidence of the eye witnesses, that both the accused appellants have surrendered before police immediately after the occurrence. In fact, the accused Zaffar also in his confessional statement stated, that after the occurrence he surrendered before police. The accused Sultan accompanying him to the police station has also not been denied, but he stated that his brother Sultan went to the police station out of fear. The unshaken oral testimony of all the eye witnesses, which are found to be consistent and coherent together with the attending facts and circumstances speaks loud and clear, that both the accused/appellants Zaffar and Sultan were armed with sharp weapon and both of them inflicted injuries to the victim. As many as 10 (ten) incise injuries on vital part of the body, of various size reflected in the medical evidence also clearly indicated that both the appellant inflicted injuries to the victim. However, in the confessional statement, the accused/appellant Zaffar sought to exonerate his brother, the co- accused Sultan and tried to take the entire responsibility of killing the victim on him. The unshaken evidence of PW-4, PW-6, PW-7, PW-8 & PW-12 as well as PW-3 clearly demonstrated that both the appellants inflicted injuries to the victim and after the occurrence, both the Page No.# 11/14 appellants surrendered before police, which was also supported by the evidence of PW-13 as well as Ext. 8. Thus, the unshaken evidence of the eye witnesses coupled with the medical evidence as well as the Ext.8 GD entry makes it abundantly clear that the statement of the accused/appellant Zaffar in his confession that Sultan was not involved or Sultan did not inflict any injury, does not inspire confidence and this part of his confessional statement which can only be attributed to an well thought endeavor of the appellant Zaffar to save the co-accused being his own brother appears to be totally unbelievable.
26. In the case of Nishikant Jha Vs. State of Bihar reported in AIR 1969 SC 422, the Apex Court held that when a confessional statement contains both inculpatory and exculpatory statements and the exculpatory statement is found to be untrue or inherently improbable, the court may accept the inculpatory statement, which is found to be true and consistent with other evidence and pointed to the guilt of the appellants, and reject the exculpatory part of the statement which is found to be false. In the instant case, in our considered opinion, though, the confession of the appellant Zaffar contained both exculpatory and inculpatory statement, the exculpatory statement to the extent, by which, the appellant sought to establish, that Sultan was not involved, is not at all believable in view of the clear evidence of PW-4, PW-5, PW-7, PW- 8, PW-12 & PW-14 as well medical evidence and as such, this part of the statement has to be rejected, inasmuch as, there is no difficulty in distinguishing between the inculpatory and exculpatory version contained in the confession and evidently, the exculpatory part is not believable.
27. Thus, the eye witnesses' account coupled with the medical evidence and all the attending circumstances in our considered opinion leave no room for doubt, that both the appellants inflicted injuries to the victim by sharp weapon, which led to his death.
28. Coming to the last submission of the learned counsel for the appellant that the appellants acted under sudden provocation and as such they could be held liable only for an offence of culpable homicide not amounting to murder. The appellant Zafar, in his confessional statement stated, that there was a civil suit pending in respect of a plot of land. The appellant Zaffar further stated in his confessional statement, that on the previous night, Sarifuj along with four other persons came to his house and warned him that on the next day, he would come to Page No.# 12/14 his house along with others and kill him. On the next morning, while he along with his brother Sultan were going to the shop for taking tea, he had overheard from the discussion among Fazlul, his wife Anu and Sofi that they (appellants) could save their skin twice, but Sharifuz Zaman (deceased) would again cause harm to the appellants and occupy the land by force. Having heard so, when they proceeded to rail gate to take tea and had 'paan' (betel leaf) instead of tea, he noticed Sharifuz Zaman (deceased) sitting in the tea stall. He also stated to have seen about 200 persons were carrying bamboo and several type of weapon proceeding towards their plot of land. As he could not fight 200 persons he attacked Sharifuz Zaman (deceased) who was sitting in the tea stall. Whereas in his statement recorded under section 313 Cr.P.C., the appellant Zaffar stated that on the previous night of the incident, Sanu, Akan & Kalia informed him that around 300 peole gathered in the house of Sharifuz Zaman (deceased) and they were loading bamboo and other materials in the handcart in order to construct house over his land by dispossessing him. On hearing the same, he went to the market near the house of Sharifuz Zaman (deceased) and found the information correct. He further stated that as he was a poor man and cannot fight with them and he also did not have any alternative land and therefore, he went to the village people and also to the police but none came forward to help him as Sharifuz Zaman (deceased) was a very rich and influential person. Therefore, he decided to kill Sharifuz Zaman (deceased). Accordingly, on the following morning when he found Sharifuz Zaman (deceased) in the tea stall he inflicted dagger blows to him and thereafter surrendered to police. If his statement recorded under section 313 Cr.P.C., as well as his confessional statement recorded under section 164 Cr.P.C., is seen, it would appear that he has made self contradictory and mutually destructive statement, inasmuch as, in his confessional statement he stated that on the previous night deceased Sharuifuz Zaman came to his house and threatened to kill him, whereas, in his statement under section 313 Cr.P.C., he stated that Sonu Akkan and Safi informed him that 300 people gathered in the house of Sharif to dispossess him from his land. Again in his confessional statement he stated that when in the morning he was coming to the tea stall for taking tea he had noticed 200 persons proceeding to the land, whereas, in his statement under section 313 Cr.P.C, he gave a different statement wherein, he stated that on the previous night he had seen that 300 people were making preparation for constructing house on his land by dispossessing him and therefore, he decided to kill Sharifuz Zaman (deceased) on the previous night itself, as according to him, no one including the police was coming forward to help him. If the statement of the accused/appellant during examination under section 313 Cr.P.C., is taken into consideration that Page No.# 13/14 he decided to kill Sharifuz Zaman (deceased) on the previous night and accordingly, on the next morning when he noticed Sharifuz Zaman (deceased) in tea stall he killed him by inflicting injuries, then there was no question of sudden provocation, inasmuch as, there was no any provocative act in the next morning by the deceased, who was admittedly taking tea in the tea stall at the time of occurrence. Rather, the act of the appellant in inflicting injuries to the deceased to kill him was pre-meditated and a well thought of decision. This apart, the version of the appellant Jaffar regarding 200 or 300 peoples assembling to dispossess him also appears to be hardly worthy of trust because of his self contradictory statement. Even if it is assumed for the sake of argument that on the last evening having seen a huge preparation by the Sharifuz Zaman (deceased) to dispossess him, he was provoked till next morning, there was considerable time to make the provocation stale and as such, inflicting injury to the victim on the next morning according to the own version of the appellant as per the decision of the last night can by no stretch of imagination be attributed to an action under sudden provocation. In order to bring a culpable homicide within the exception 1 to Section 300 IPC, the act of causing death must be done "while deprived of the power of self control by grave and sudden provocation. If the time gap between the provocation and the 'act' constituting offence is long enough so as to make the provocation stale the exception 1 cannot be attracted. Therefore, in the facts and circumstances of the case, we are of the considered view, that act of the appellant in inflicting injuries for causing death can by no stretch of imagination be brought within the exception 1 to section 300 IPC.
29. The multiple injuries on the vital parts of the deceased, as well as the nature of weapon used by the appellants coupled with the facts and circumstances under which the injuries were inflicted, it was abundantly clear that the appellant acted with pre-meditation and intention to cause death of the deceased was also loud and clear. That the appellants shared common intention to cause death of the deceased was also evident from the facts that both the appellants were armed with sharp weapon and inflicted injuries to the victim.
30. In view of the above facts and circumstances, we are of the considered opinion that the prosecution has proved the charge under section 302/448 IPC against both the appellants beyond all reasonable doubt and as such, we find no reason to defer with the conclusion arrived at by the learned trial Court to convict the appellants under section 302/448 IPC and Page No.# 14/14 therefore, we find no merit in this appeal. Accordingly, the appeal stands dismissed.
31. A copy of this judgment and order be forwarded to the Superintendent of the Central Jail, Nagaon.
32. Send down the LCR along with a copy of this judgment.
JUDGE JUDGE Mkk Comparing Assistant