Gauhati High Court
Md Saha Ali vs The State Of Assam And 3 Ors on 10 December, 2018
Equivalent citations: AIRONLINE 2018 GAU 798
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/6
GAHC010022122015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A. 247/2015
1:MD SAHA ALI
S/O LT. ASAB ALI, VILL. BATABARI, P.S. DHULA, DIST. DARRANG, ASSAM.
VERSUS
1:THE STATE OF ASSAM and 3 ORS
REPRESENTED BY THE PUBLIC PROSUCUTOR, ASSAM.
2:BHABIRAM BAGLARI
S/O LT. THEBARAM BAGLARI
3:KAMESWAR BAGLARI
S/O KATIRAM BAGLARI
4:DAYAL BAGLARI
S/O LAGAN CH. BAGLARI
ALL ARE R/O VILL. SILABANDHA
P.O. BHAKATPARA
P.S. KALAIGAON
DIST. UDALGURI
ASSAM
PIN 78419
Advocate for the Appellant MR. HRA CHOUDHURY, SR. ADV.
MR A.T. SARKAR
Advocate for the Respondent No. 1 : MR. H. SARMA
Advocate for the Respondent No. 2 to 4. : MR. S.K. SINGHA
Page No.# 2/6
BEFORE
HONOURABLE MR. JUSTICE MANASH RANJAN PATHAK
HONOURABLE MR. JUSTICE MIR ALFAZ ALI
JUDGMENT & ORDER (ORAL)
Date : 10-12-2018 (MIR ALFAZ ALI, J) We have heard learned senior counsel, Mr. HRA Choudhury assisted by Mr. A.T. Sarkar for the appellant. Also heard learned Addl. Public Prosecutor, Mr. H.Sarma for the State/respondent No. 1 and Mr. S.K. Singha, learned counsel for the respondent Nos. 2 to 4.
2. This appeal is directed against the judgment and order dated 04-03-2015, passed by learned Sessions Judge, Udalguri, in Sessions Case No.237(D-U)/2012. By the said judgment, learned Sessions Judge convicted the appellant u/s 302 IPC and sentenced him to imprisonment for life and fine of Rs. 5,000/- (Rupees five thousand) with default stipulation.
3. As per prosecution case, on 26-02-2009, at about 11.30 AM, the appellant was taking away three bullocks (one of which belonged to the victim Daya Ram) from the field, which were tethered for grazing. When Daya Ram (deceased) resisted the appellant Saha Ali from taking away the bullocks, altercation started between them. In course of such altercation, the appellant and his companion attacked Daya Ram with a spade and inflicted multiple injuries to him. Immediately, the victim was shifted to Mangaldoi Civil Hospital and thereafter to GMCH, where he succumbed to the injuries. The FIR (Ext. -1) was lodged jointly by PW 1, PW 2 & PW 5, on the basis of which, police registered Dhula Police Station Case No. 34/2009 u/s 147/148/149/341/326/307/379 IPC, and commenced investigation. During investigation, post mortem examination was conducted on the body of the victim by Dr. Niku Kumar Gogoi (PW 8).
4. Dr. Niku Kumar Gogoi, who conducted the post mortem examination on the body of the victim, found the following injuries:
"Injuries
1. Abrasion of size 5 cm x 3 cm over left knee joint on frontal aspect.
2. Abrasion of size 6 cm x 3 cm over right knee joint extending upto lower Page No.# 3/6 part of thigh and the frontal aspect.
3. Incised wound of size 7 cm x 2 cm x skin deep over the back of chest about 17 cm obliquely downwards from right acromion process and about 5 cm below C7 vertebrae.
4. Stitch wound of size 12 cm x 1.5 cm x skin deep over the nap of neck region situated about 7 cm above C7 vertebrae and about 10 cm backwards from right ear lobe. The wound is wrapped by 12 nos. of stitches.
5. Stitch wound of size 5 cm x 1.5 cm x muscle deep situated over the right parietal eminence, underneath contusion of whole occipital area and cut injury over the occipital bone of size about 6.5 cm directed obliquely downwards.
6. Stitch wound of size about 7 cm x 1.5 cm x muscle deep present over the vertex of scalp situated about 2.5 cm right from midline and about 17 cm from right mastoid."
In the opinion of the doctor, death was due to coma resulting from injuries sustained over the head. All the injuries were ante mortem and caused by moderately heavy sharp edged weapon and was homicidal in nature. Approximate time of death was 12 to 24 hours prior to the post mortem examination.
5. On conclusion of investigation, police submitted charge-sheet against the seven accused persons including the present appellant u/s 147/148/149/341/302 IPC and eventually all of them stood trial.
6. In course of trial, learned Sessions Judge framed charges against all the seven accused persons under Sections 147/148/149/341/302 IPC, to which they pleaded not guilty. Prosecution examined ten witnesses to establish the charges against the accused persons. On appreciation of evidence, learned trial court convicted the present appellant under Section 302 IPC and awarded sentence as indicated above. Rest of the co-accused persons standing trial were acquitted.
7. Out of the ten witnesses examined by prosecution, PW 1 was not the eye witness of the Page No.# 4/6 occurrence. PW 8 was the doctor. PW 7, PW 9 & PW 10 were the investigating officers.
8. PW 2, one of the eye witness, testified that the accused/appellant was trying to take away three bullocks, one of which belonged to the victim, from the grazing field. When the victim tried to resist the accused/appellant, quarrel started and there was scuffle between them. He (PW 2) further stated that the accused Saha Ali inflicted cut injuries to the victim with a spade. During his cross-examination, it was elicited that when the victim resisted Saha Ali from taking away the bullocks, altercation ensued between them, which continued for about 5 to 10 minutes. PW 3, Ritam Baglary also stated that the appellant inflicted cut injuries to the victim with a spade. According to PW 4, seeing the appellant Saha Ali taking away the bullocks, the victim chased him and Saha Ali inflicted cut injuries to him. The PW 5 also testified that Saha Ali dealt blows to the victim Daya Ram with a spade. According to PW 6, Saha Ali accompanied by three others hacked the victim Daya Ram with a spade. The categorical evidence of all these witnesses, that Saha Ali inflicted injury to victim Daya Ram remained unshaken. The medical evidence of PW 8, Niku Kumar Gogoi and the post mortem examination report (Ext. 2) also lent support to the oral testimony of PW 2, PW 3, PW 4, PW 5 & PW 6, so far the injuries received by the victim and the weapon of offence were concerned.
9. Thus, the oral testimony of PW 2, PW 4, PW 5 & PW 6, coupled with the medical evidence, leaves no room for doubt, that it was the appellant, who was the perpetrator of the act causing death of the victim. Learned senior counsel, Mr. Choudhury has also not seriously assailed the above evidence establishing, that the appellant Saha Ali was the perpetrator of the offence. However, the contention of the learned senior counsel, Mr. HRA Choudhury is that even accepting accused/appellant as perpetrator of the offence, in view of evidence and materials brought on record, the appellant could not have been convicted u/s 302 IPC, inasmuch as, premeditation on the part of the appellant to cause death or the intention to cause death was totally absent in the instant case. It is further submitted by Mr. Choudhury that at best the appellant could have been held liable for culpable homicide, not amounting to murder u/s 304 IPC. We find substance in the submission of learned senior counsel, Mr. Choudhury.
10. Admittedly when the appellant Saha Ali was trying to take away the bullocks from the Page No.# 5/6 field, Daya Ram (victim) resisted him, whereupon quarrel ensued between them. It is in the evidence of PW 2, that initially altercation took place between the appellant and the victim followed by scuffle. It is also in the evidence of PW 2, that the accused had only a stick in his hand. Thus, as per prosecution, initially altercation took place between the appellant and the victim, followed by scuffle and ultimately the accused inflicted injuries to the victim with the spade. A spade is usually used as an agricultural implement by all the farmers and easily available in the field. The admitted fact, that initially the appellant was not armed with any weapon of offence, except a stick, which is usually carried by any villagers in the field at the time of grazing cattle, clearly indicated that the spade was picked up by the appellant in course of the quarrel and inflicted the injuries to the victim at the heat of passion. The factum of the appellant having not carried any weapon with him, except a stick, and hitting the victim with a spade, which he picked up from the place of occurrence in course of quarrel clearly demonstrated, the absence of premeditation on the part of the appellant to cause death of the victim.
11. Thus, the evidence on record, that quarrel took place between the accused and the victim followed by scuffle and in course of such scuffle, the appellant inflicted injuries to the victim with a spade at the heat of passion, clearly brings the act of the appellant, within the purview of exception IV to Section 300 IPC, which provides that culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion, upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Having regard to the sequence of events, as revealed from the evidence, the weapon used and the nature of injuries and the social strata, to which the accused belongs, it is difficult to say that the victim had taken any undue advantage or acted in an unusual manner.
12. Be that as it may, though, there was no pre-mediation or intention to cause death, from the nature of injuries and the weapon used, it is difficult to say that the accused/appellant did not have the knowledge that the injuries inflicted by him, would likely cause death, nor it can be said, that the appellant did not have the intention to cause such bodily injuries as was likely to cause death. Thus, having regard to the fact that there was no premeditation or intention to cause death and the injuries were caused at the heat of passion, in course of Page No.# 6/6 quarrel and mutual fight (scuffle), we are of the considered opinion that conviction of the appellant u/s 302 IPC cannot be maintained. Accordingly, we set aside the conviction and sentence of the appellant u/s 302 IPC, instead, we convict him u/s 304 Pt-II IPC and sentence him to imprisonment for 6 (six) years and fine of Rs. 5,000/-. In default, the appellant shall undergo further simple imprisonment for 3 (three) months.
13. The period which the appellant has already undergone during investigation and trial shall stand set off against the substantive sentence.
14. The appeal, accordingly, stands partly allowed.
15. Send back the LCR along with a copy of this judgment.
JUDGE JUDGE Comparing Assistant