Gauhati High Court
Deputy Commissioner-Cum-Sessions ... vs Nyongwa Ngemu on 22 March, 2002
JUDGMENT B.B. Deb, J.
1. This criminal reference has been made under Section 30(1) of the Assam Frontier (Administration of Justice) Regulation, 1945 (for short 'the Regulation, 1945') for confirmation of sentence of 10 years rigorous imprisonment upon the convict-respondent, Nyongwa Ngemu, by the learned Deputy Commissioner-cum-Sessions Judge, Changland District vide judgment/order dated 10.2.2000 in Sessions case No. 3 of 86.
2. To be precise, the prosecution case can be summarised as below:-
On 6.4.1998, accused Nyongwa Ngemu stabbed his brother Khulem Ngemu, by a knife and the victim was admitted to Changlang hospital where he succumbed to the injuries on 8.4.1998. Before the incident of stabbing, there was a quarrel between the accused and his sister Smt. Chamin Dorjee at Changlang Bazar line. Smt. Chamin Dorjee called her younger brother Khulem Ngemu to mediate the matter. While the deceased tried to persuade the accused not to quarrel with his sister, the accused stabbed him in the abdomen. The Police on receipt of the complaint registered a case bearing number Changlang PS case 5/88 under Section 307 IPC which was later converted to Section 302 IPC on the expiry of the injured Khulem. On completion of investigation, the Police filed charge-sheet. The case was tried by the learned Deputy Commissioner-cum-Sessions Judge, Changlang and during trial the accused was provided with defence counsel at the State expenses.
On perusal of the materials available, the leaned trial Court framed the charge which is quoted below :-
"I, Kum. Archana Arora, Deputy Commissioner, Changlang hereby charge you (name of accused person) Shri Nyongwa Ngemu, son of Shri Lokwang Ngemu, village Ngichang, P.O. Changlang, P.S. Changlang, District Changlang as follows :-
That your on or about 6.4.1988 at about 2030 hrs. stabbed Shri Khulem Ngemu on abdomen with a knife at the residence of Shri M. Dorjee, as a result of which Shri Khulem Ngemu died in Changlang hospital on or about 8.4.1988. You have committed an offence under Section 304 IPC and within the cognizance of this Court."
During trial prosecution produced as many as 8 witnesses and the defence none. On conclusion, the learned trial Court convicted the accused-respondent Nyongwa Ngemu under Section 304 IPC and imposed a sentence of rigorous imprisonment for 10 years without fine. Hence, this reference.
3. In view of Section 30(1) of the Regulation, 1945, all sentences of death, transportation for life or imprisonment for 7 years or more shall be subject to confirmation by the High Court and under Section 30(2) of the Regulation, 1945, the High Court may confirm the sentence or pass any other sentence warranted by law or may annul the conviction and convict the accused of any other offence of which the Deputy Commissioner might have convicted him or may order a de novo trial on the same or an amended charge or may acquit the accused person.
4. Having regard to the aforementioned provisions of law, this Court is under obligation to re-assess the evidence on record in order to find out the correctness of the order of conviction and sentence thereof.
5.1 have heard learned Public Prosecutor and Mr. A. Apang, learned arnicus curiae appointed by the Court for the convict-respondent.
6. The incident of stabbing happened on 7.30 p.m. on 6.4.1988. The PW 1 Shri Mon Bdr. Dorjee, the brother-in-law of the accused (sister's husband) and PW 2 Smt. Chamin Dorjee, the sister of the accused are the eyewitnesses of the incident. The PW 7, the Circle Officer of Changlang recorded the confessional statement made by the accused. In addition, there was a dying declaration recorded by Mr. E.T. Tara, Judicial Magistrate, 2nd Class, PW 5 vide Exbt. P/6.
7. From the deposition of PW 6 Dr. A.C. Saikia, it reveals that he conducted the autopsy over the dead body of Khulem Ngemu on 9.4.1988 and recorded his observation in the postmortem report which has been proved as Exbt. P/4. He found the following injuries on the corpus :-
"Penetrating injury 1" below the umbicilus size is 1", clean cut margin vertifically. Peritoneum of the abdomen was found with full of blood stained fluid. He opined that the death was due to peritonitis following internal haemorrhage."
From the medical evidence, it can be safely held that the death of Khulem Ngemu happened as a result of stab injury sustained by him.
8. From the statements of PW 1 and PW 2, it reveals that in the evening of the date of incident, the accused involved himself in quarreling with his sister, the PW 2 regarding some household affairs. In the midst of quarrelling, her husband PW 1 returned home. On her call, her younger brother Khulem Ngemu appeared there and made attempt to pacity the situation. But since the accused was drunken having a knife in hand, he turned deaf ears to the persuasion made by his brother and brother-in-law. Suddenly, both the brothers started walking out of the house. At that time, the PW 2 sister heard the deceased shouting telling "my stomach is corning out". Immediately, she rushed and found her younger brother in injured condition. They arranged the shifting of injured brother to the hospital where the Police and the Magistrate came. The Magistrate recorded the statement of the injured in her presence. The injured disclosed before them that he was stabbed by the accused. The injured succumbed to the injuries two days thereafter. From her version, it remains admitted that at the relevant time, the accused was intoxicated.
9. From the evidence on record, it appears that there was a quarrel between the accused and his sister before the incident and while the younger brother, the deceased came to intervene, the accused lost his patience and on being provoked at the interference, he stabbed his brother with a little knife. The nature of injury transpired that the knife penetrated only one inch in the abdomen and the learned amicus curiae having referred to the nature of injury and the prevailing circumtances as revealed from PWs submits that it was not the case of culpable homicide not amounting to murder. He developed his argument by addressing the Court that in view of Section 299 of the IPC, the act of the accused must be with intention of causing death or with intention of causing such bodily injury which is likely to cause death or with knowledge that the act is likely to cause death.
In the present case, from the evidence of two eyewitnesses coupled with the medical evidence, it appears to me that the accused had no intention of causing death of his brother nor had he any intention of causing bodily injury which was likely to cause death nor had he any knowledge that he was likely to do some act which might cause death. Since none of the ingredients is there in the present case, I am of the considered opinion that it was not the case of homicidal death.
10. The nature of injury sustained by the deceased appears to be grievous injury as defined under Section 320 IPC in clause "Eighthly" that "any hurt which endangers life". The present case is covered by the classification defined in "Eighthly" as the injury sustained by the deceased appears to be one which "endangers life". The learned amicus curiae having referred the penal provision of 326 IPC submits that the present case falls within the exception provided by Section 335 IPC and as such the conviction cannot be altered under Section 326 IPC.
On careful perusal of the penal provision of Section 326 IPC, it appears that for voluntarily causing grievous hurt by means of any instrument for shooting, stabbing, cutting etc., the accused could be convicted "except in the case provided for by Section 335".
11. Let me see whether the present case is covered by the penal Section 335 IPC, Under Section 335 IPC, the accused who voluntarily causes grievous hurt on grave and sudden provocation having no intention or having no knowledge of causing any grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment for 4 years or with fine. In the present case, there was a quarrel between the convict and his sister, PW 2 and on being called by the sister PW 2, the deceased happened to the spot and made an attempt to pacify the situation and in that juncture, the convict stabbed his brother with a knife. From the circumstances and from the oral evidence of the PWs, it could be said that the accused-convict had no intention to cause any grievous hurt nor had he any knowledge that he could cause a grievous hurt to his brother and as such, I am of the considered opinion that in such a situation, while provocation was there and the accused without any intention to cause any grievous hurt or without any knowledge that it would likely to cause grievous hurt to any person other than one from whom provocation came, could be convicted only under Section 335 IPC.
12. A question has been posed in course of hearing that in absence of any appeal being preferred by the accused-convict against the order of conviction, whether this Court on hearing a Reference could alter the conviction ? Under Section 26 of the Regulation, 1945, an appeal shall lie to the High Court against sentence of three years imprisonment and upward and also against sentence of death or transportation. But the convict-respondent has not resorted to the said provision of appeal. The matter has been referred for confirmation of sentence pursuant to Section 30(1) of the Regulation, 1945. Under Section 30(2) of the Regulation, 1945, the High Court while considering the reference could either "confirm the sentence" or could "annul the conviction and convict the accused of any other offence" for which the Deputy Commissioner might have convicted him. Therefore, I am of the considered opinion that in view of Section 30{2)(b) of the Regulation, 1945, the High Court can alter the conviction in exercise of power on a Reference even without any appeal being preferred.
13. In the aforenarrated legal and factual aspects of the case, the conviction recorded by the learned trial Court under Section 304 IPC is hereby annulled. Instead, the accused-convict Nyongwa Ngemu is hereby convicted under Section 335 IPC which in my considered opinion, the leaned trial Court ought to have done. On altering the conviction as aforesaid, the accused-respondent is hereby sentenced to suffer rigorous imprisonment for 2 (two) years.
14. In the result, the Reference is answered in the following manner :-
The conviction of the accused-respondent under Section 304 IPC is annulled. Instead, the accused-respondent is convicted under Section 335 of the IPC with a sentence of rigorous imprisonment for 2 (two) years. The learned trial Court is to take appropriate action to execute the order of sentence so imposed.
15. Accordingly, the Criminal Reference is disposed of.