Gauhati High Court
Md. Jalilur Rahman @ Sonti Ali vs The State Of Assam on 22 December, 2011
Author: A.K. Goel
Bench: A.K. Goel
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal NO. 93(J) of 2005
Md. Jalilur Rahman @ Sonti Ali,
Son of late Phukan Ali,
Resident of village Moidomia,
P.O. Moidomia Gaon,
P.S. North - Lakhimpur,
District- Lakhimpur, Assam.
.......... APPELLANT.
- VERSUS -
The State of Assam ...... RESPONDENT.
BEFORE HON'BLE CHIEF JUSTICE MR. A.K. GOEL HON'BLE MR. JUSTICE C.R. SARMA For the appellant : Mrs. Rita Boro Bora, Amicus Curiae.
For the respondent : Mr. Z. Kamar,
Public Prosecutor,
Assam.
Date of hearing : 12.12.2011
Date of Judgment and order::: 22.12.2011
JUDGEMENT AND ORDER
(C.R. Sarma, J)
[1] This appeal is directed against the judgment and
order, dated 18.07.2005, passed by the learned Additional Sessions Judge (Ad-hoc), Lakhimpur, North Lakhimpur in Sessions Case No. 76(NL)/2003.
By the impugned judgment and order, the learned Sessions Judge convicted the appellant, namely, Md. Jalilur Rahman @ Sonti Ali for the offence under Section 302 of the Indian Penal Code (for short, 'IPC') and sentenced him to suffer Crl. Appeal No. 93(J)/ 2005 Page 1 of 32 rigorous imprisonment for life and pay fine of Rs. 1,000/- (Rupees one thousand), in default, suffer rigorous imprisonment for another period of 6 (six) months.
Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. [2] We have heard Mrs. Rita Boro Bora, learned Amicus Curiae, appearing for the appellant and Mr. Z. Kamar, learned Public Prosecutor, appearing for the State respondent. [3] The prosecution case, as revealed during the trial, may, in brief, be stated as follows:
On 16.07.2000, at about 5.00 p.m. the informant's father, Shri Kuladhar Bania (hereinafter referred to as "the deceased"), arriving at his paddy field found that, Md. Sonti Ali @ Jalilur Raham (appellant) alongwith Md. Deuta Ali, Md. Jitu Ali and others were illegally ploughing on the land of the deceased. As the deceased had raised objection, in respect of ploughing of the land by the said persons, the appellant had given dao blows on the legs of the deceased, thereby causing injuries to his person. [4] The informant, who is the son of the deceased, coming to know about the incident, rushed to the place of occurrence and found his injured father struggling with life. The deceased succumbed to his injuries, sustained by him. Sri Ratna Bania (PW-2), the son of the deceased, as informant, lodged an FIR (Ext. No. 1) with the North Lakhimpur Police Station, on the date of occurrence itself and upon receipt of the said FIR, police registered a case being North Lakhimpur P.S. Case No. Crl. Appeal No. 93(J)/ 2005 Page 2 of 32 569/2000, under Sections 447/302/34, IPC and launched investigation into the matter.
[5] During the course of investigation, police visited the place of occurrence, seized one machete (i.e. dao with a long handle) from the house of Md. Jalilur Rahman i.e. the appellant, vide seizure list Ext. No. 3). After preparing the inquest report, in respect of the dead body of the deceased, the Investigating Officer (PW-8) forwarded the dead body for post mortem examination.
[6] At the close of the investigation, police submitted the charge sheet against Md. Jalilur Rahman alias Sonti Ali i.e. the appellant, and three others namely, Ritu Ali, Jitu Ali and Tobibuddin Ali @ Dewta Ali, under Sections 302/34 IPC. [7] The offence under Section 302/34 IPC, being exclusively triable by the Court of Sessions, the learned Sub- Divisional Judicial Magistrate (Sadar), Lakhimpur, North Lakhimpur committed the case to the Court of Session. Accordingly, the learned Sessions Judge framed charge under section 302 read with Section 34 IPC against the appellant and three others. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried.
[8] In order to prove its case, the prosecution examined as many as 8 (eight) witnesses, including the Medical Officer (PW- 5) and the Investigating Officer (PW- 8). At the close of the evidence for the prosecution, the accused persons were Crl. Appeal No. 93(J)/ 2005 Page 3 of 32 examined under Section 313 of the Cr.P.C. They denied the allegations, brought against them and declined to adduce defence evidence.
[9] The appellant, in his statement, recorded under Section 313 of the Cr. P.C., stated that he alone was ploughing the land and that, on being resisted by the deceased, he had fled the place. He clearly stated that the other accused persons were not guilty in any manner.
[10] Having heard the learned counsel, appearing for the parties and considering the evidence on record, the learned Sessions Judge found the appellant guilty of the offence, under Section 302 IPC and accordingly convicted and sentenced him as indicated hereinabove. The other accused persons were acquitted for want of sufficient evidence against them. [11] Ms. Rita Boro Bora, learned Amicus Curiae, taking us through the evidence, on record, has submitted that there is no evidence on record, to show that the appellant had caused injury with an intention to kill the deceased or with the knowledge that the injury, inflicted by the appellant, was sufficient to cause the death of a person. Learned Amicus Curiae has also submitted that, except PW -1, who is a son of the deceased, there is no other direct evidence to show that the appellant had caused injury, resulting the death of the deceased. It is also contended by the learned Amicus Curiae, that PW -1, being the son of the deceased was an interested witness and as such his evidence is not reliable.
Crl. Appeal No. 93(J)/ 2005 Page 4 of 32 [12] In view of the above, the learned Amicus Curiae has submitted that the learned Sessions Judge committed error by solely relying on his evidence to base the conviction. The learned Amicus Curiae, taking this court through the evidence of the Medical & Health Officer (PW-5) has submitted that the Medical & Health Officer, who performed the autopsy of the deceased found that the deceased had sustained cut injury over his left hand and on both legs and that, in the opinion of the Medical & Health Officer, the deceased died due to excessive bleeding due to the said injury.
[13] In view of the said injuries, the learned Amicus Curiae has submitted that, if the appellant had any intention to cause the death of the deceased, he being armed with a dao (a sharp cutting weapon), as alleged by the prosecution, could have inflicted the blows on some vital parts of the body, but in view of inflicting fatal blows on hand and legs, which are not vital organs, it is submitted that no inference can be drawn to hold that the appellant had any intention or premeditation to kill the deceased. Therefore, referring to the injuries sustained by the deceased, the learned Amicus Curiae has submitted that the learned Sessions Judge committed error by convicting the appellant under Section 302 IPC.
[14] According to the learned Amicus Curiae, even if it is presumed that the appellant had caused injuries aforesaid then also considering the nature of the injuries, inflicted, he could, at best, be held liable for the offence under Section 304 Part-II of the IPC. In view of the above, it is submitted that, as the appellant has already suffered imprisonment for more than 6 Crl. Appeal No. 93(J)/ 2005 Page 5 of 32 (six) years, he is entitled to be released from the liability of the sentence. In support of her contentions, the learned Amicus Curiae has relied on the decisions, held in the case of Rajinder Vs. State of Haryana, reported in (2006) 5 SCC 425 and Kalinder Bharik Vs. State of H.P. reported in 2000 SCC (Cri)
96.
[15] Controverting the said argument, advanced by the learned Amicus Curiae, Mr. Z. Kamar, learned Public Prosecutor has submitted that though PW -1 was the son of the deceased, the said relationship itself cannot be sufficient ground to negate the unimpeachable evidence, rendered by him. The learned P.P. has also submitted that there is sufficient evidence on record, to show that the appellant caused the injuries with a sharp cutting weapon and that the deceased died due to the said injuries. [16] In view of the above, the learned P.P., supporting the impugned conviction and sentence, has submitted that the learned Sessions Judge committed no error by recording the conviction and sentence under Section 302 IPC and as such the same does not warrant any interference by this Court. [17] In order to appreciate the counter arguments, advanced by the counsel, appearing for the parties and to examine the correctness of the impugned judgment and order, we feel it appropriate to, briefly, scan the evidence on record, as follows:
[18] From the evidence of the PW 1, who was the son of the deceased, it is found that the appellant and the deceased Crl. Appeal No. 93(J)/ 2005 Page 6 of 32 were neighbourers, belonging to the same village and on the fateful day, when the PW 1, alongwith his brother (PW 2) and the deceased were waiting to catch a bus for going to their village namely, Sisiber, one Durga Bania (not examined in this case) informed them that the appellant and others had ploughed their land, by breaking the fencing. On being so informed, the informant and his brother (PW-2) rushed to their paddy field, by riding a motorcycle, while their father followed them on foot. As stated by PW-1, his brother left the place for their home, after dropping him thereat. PW 1 further stated that, on being asked by him not to plough on their land, the accused persons had assaulted him with bamboo.
[19] PW 1 further stated that, as soon as, the deceased i.e. their father had arrived in the paddy field, the appellant, Sonti Ali @ Jalilur Rahman give him daw-blows. He clearly stated that the appellant had inflicted cut injuries on the left hand and both legs of the deceased, as a result of which the later had fallen down. According to PW 1, alarm being raised by him, Shri Hemanta Das followed by Mustt. Aklima Begum (PW-4) and Miss Chakina Hazarika arrived in the place of occurrence. He further stated that his father was shifted to Hospital, wherein he succumbed to the injuries.
[20] PW 1 identified the weapon of assault i.e. the dao, which was used by the appellant. He denied the suggestion, put to him on behalf of the defence, that he and his brother had assaulted the accused persons. He also denied the suggestion that he had carried the dao and that he had assaulted the accused persons with the same.
Crl. Appeal No. 93(J)/ 2005 Page 7 of 32 [21] Shri Ratnajyoti Bania (PW -2), another son of the deceased, who lodged the FIR, which he exhibited as Ext. 1 and his signature thereon as Ext. 1(1), in tune with the evidence of his brother (PW 1), stated that, when he alongwith his father, i.e. the deceased and his brother (PW -1) were waiting for bus, Durga Bania, a co-villager had informed them that the accused persons had ploughed on their land. Supporting the evidence of PW 1, he further stated that he, alongwith PW-1 proceeded to the place of occurrence on his motorcycle, while their father had followed them on foot. According to this witness, as the doors of their houses were kept open he, after dropping his brother (PW-
1), left for home. He also stated that his mother used to stay in their house, situated at Sisiber Village, while he and alongwith PW 1 and their deceased- father used to stay at Moidomia Village.
[22] According to this witness, after about 10 (ten) minutes of his arrival in his house, he was informed by Shri Hemanta Das that his father was assaulted. On being so informed, he rushed to the place of occurrence and found that his father was lying, in the place of occurrence, with bleeding injuries. Corroborating the evidence of PW 1, he stated that he found Ms. Chakina and Mustt. Aklima, in the place of occurrence. According to this witness, his father was shifted to Hospital, wherein he succumbed to injuries.
[23] Both PW -1 and PW 2 were duly cross-examined on behalf of the defence, but no contradiction could be elicited to render their evidence disbelievable. They have corroborated each Crl. Appeal No. 93(J)/ 2005 Page 8 of 32 others evidence on material point, inspiring confidence in respect of their evidence to the effect that the injured sustained cut injuries at the hands of the appellant.
[24] Mustt. Chakina, who deposed as PW -3, supporting the evidence of PWs 1 and 2 stated that, hearing cry, she rushed to the place of occurrence and found that the deceased was lying, in the paddy field, in injured condition. She clearly stated that the injured person was bleeding from both of his legs and that she had offered a Gamocha (Napkin) to fasten the injury. [25] Miss. Aklima Begum also, deposing as PW 4, stated that, hearing hue and cry, she went to the place of occurrence and found that the deceased was lying in injured condition. [26] Shri Ainuddin Ahmed, who deposed as PW -6 stated that police came, at night, in search of the appellant and seized a weapon i.e. a long handled dao from the house of the appellant. He has exhibited the seized dao as Ext. 3 and his signature as Ext. 3(1). This witness further exhibited the seized dao as material Ext. No. 1.
[27] Smti Anu Hazarika, who deposed as PW 7 stated that the police had taken the appellant to her house and took her signature on Ext. 3. She exhibited her signature as Ext. 3(2). In her cross- examination, she stated that no article was shown to her and that she did not know what was written in the Ext. 3. [28] PW 5 is the Medical & Health Officer (M&HO), who performed the post mortem examination in respect of the dead Crl. Appeal No. 93(J)/ 2005 Page 9 of 32 body of the deceased. PW-5 stated that he found the following injuries on the person of the deceased:
"In Thorax: Wall, ribs & cartiledges were intact. Pleura congested but intact. Larynx & Trachea A normal. Both the lungs were also normal. Let heart was empty &Vessels were intact in the thorax.
Injuries were-
1. Sharp-cutting injury over the left hand 3"1" size.
2. Sharp cutting injury over the cut on muscles in the right leg 6"x5" approximately with exposed vessels.
3. Tendocalis in the left leg, cut injury of 4'x3'(appx) Approximately 2" above the sole.
Facture not seen. No dislocation deceased apparently absent.
Injuries were ante mortem in nature.
External appearance: Average built, rigor mortis was present.
Opinion:- In my opinion, the patient expired due to massive haemorrhage from the multiple cut injuries as mentioned above."
[29] The Investigating Officer (PW 8) stated that, after receipt of the FIR, he visited the place of occurrence and sent the dead body of the deceased for post-mortem examination and seized the weapon of assault. He exhibited the seizure list as Ext. 3 and his signature thereon as Ext. 3(3).
[30] From the above discussed evidence, it is found that except PW 1, none of the witnesses saw the occurrence. PW 1 clearly stated that the appellant had given dao blows on the deceased as a result of which there was profuse bleeding. PWs 2, 3 and 4 who also arrived at the place of occurrence, after the Crl. Appeal No. 93(J)/ 2005 Page 10 of 32 incident, supported the evidence of PW 1 regarding injuries sustained by the deceased. Though PWs 1 and 2 were the sons of the deceased, PWs 3 and 4 were independent persons. The said independent persons, clearly corroborated the evidence of PWs 1 and 2 and stated that, hearing hue and cry, they arrived in the place of occurrence and found the deceased, lying, in the injured condition. Though the said witnesses were subjected to cross- examination, no contradiction could be elicited to demolish their evidence.
[31] In view of the above, we find sufficient corroboration, in the evidence of PW Nos. 1, 2, 3 and 4 to believe that the deceased sustained injuries in the occurrence that took pace in his paddy field, on the date of incident. Both PW Nos. 1 and 2, who are brothers, stated that they, on being informed by a person to the effect that the appellant and others had ploughed in their land, rushed to the place of occurrence, followed by their father. According to PW 2, he and his brother (PW1) proceeded by riding a motorcycle and he left for home, after dropping PW 1 in the paddy field. Therefore, it is found that PW 1 remained in the place of occurrence and he was a natural witness. According to PW 1, he too was initially assaulted and as soon as the deceased had arrived in the paddy field, the accused persons assaulted him by giving dao blows on his legs. This evidence of the PW 1 remained un-demolished.
[32] The law is well settled that the evidence of close relatives, if found trustworthy and reliable cannot be brushed aside, only on the ground that such witness is a relative of the deceased. As noticed from common experience, in ordinary Crl. Appeal No. 93(J)/ 2005 Page 11 of 32 course, except the close relative, other persons hardly prefer to stand as witness. That a part, from the facts and circumstances of this case, it is found that at the relevant time, in the place of occurrence there was none, except PW 1 and the deceased to challenge the illegal act of the appellant. Therefore, PW 1, though a relative of the deceased, was a natural witness and there is nothing, on record, to disbelieve the evidence, given by him. There is material to show that PW 1 had any adverse interest or grudge to falsely implicate the appellant allowing the real culprit to escape. Therefore, the forceful evidence given by PW 1, clearly lead to believe that the appellant had given dao blows causing injuries to the deceased.
[33] Admittedly, the deceased died following the said incident. Both the P.Ws 1 and 2 stated that the deceased was taken to the Hospital, wherein he succumbed to the injuries. The evidence of the P.Ws 1 and 2, in this regard remained unchallenged. Therefore, there is no dispute that the deceased succumbed to the injuries sustained by him, at the hands of the appellant. PW 5 is the Medical & Health Officer, who performed the autopsy in respect of the dead body of the deceased on the same day, at about 9-30 a.m. the occurrence took place at about 5 a.m. The said Medical & Health Officer opined that the deceased died due to massive haemorrhage from the multiple cut injuries sustained by him. As opined by the said Medical & Health Officer, the death of the deceased was caused due to injuries sustained by him.
[34] In view of the above and considering entire aspects of the matter, we find no difficulty in concluding that the Crl. Appeal No. 93(J)/ 2005 Page 12 of 32 injuries, caused by the appellant, resulted the death of the deceased. Therefore, the act done by the appellant was the cause of death of the deceased.
[35] Now, the question is whether the appellant committed an offence under Section 302 IPC. Law is well settled that all culpable homicides are not amounting to murder, although the reverse is the rule. Making a distinction between Sections 299 and 300 IPC, the Supreme Court in the case of Rajinder (Supra), observed as follows:
"16. The academic distinction between "murder" and "culpable homicide not amounting to murder" has always vexed the courts. The confusion is caused, if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:
Section 299 Sections 300 A person commits Subject to certain culpable homicide exceptions culpable if the act by which homicide is murder the death is caused if the act by which is done- the death is caused is done- Intention (a) with the itention (1) with the intention of causing death; or- of causing death; or- (b) with the intention (2) with the intention of causing such of causing such bodily bodily injury as is injury as the offender likely to cause death knows to be likely to or- cause the death of the Crl. Appeal No. 93(J)/ 2005 Page 13 of 32 person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient to the ordinary course of nature to cause death; or Knowledge (c) with the knowledge (4) with knowledge that that the act is likely the act is so imminently to cause death. Dangerous that is must in all probability, cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above."
17. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2) . Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300. Crl. Appeal No. 93(J)/ 2005 Page 14 of 32
21. The ingredients of clause "Thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (SCR pp. 1500-01) "To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 '3rdly'.
First, it must establish, quite objectively, that a bodily injury is present.
Secondly, the nature of the injury must be proved. These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
[36] In the above-referred case, the appellant raised a "lalkara" saying that he will teach a lesson to the victim for giving secret information to the police for taking the land on lease. He then fired a shot at 'Subhash' with his gun, which hit on his right thigh. Subhash fell down on the ground. Vishnu Ram (PW-
8) reached the spot on hearing the alarm. The Medical Officer examined the injured and found as follows:
"1. A firearm wound on the right thigh -- wound of entry -- circular in shape, 1¼ cm × 1¼ cm margins were inverted on the posterolateral aspect of the middle of the right thigh. Margins were greasy and black. Crl. Appeal No. 93(J)/ 2005 Page 15 of 32 Wound of exit -- large extensive wound 1½ × 4? on the anteromedian aspect of right thigh (at middle). There was severe bleeding from the wound and margins were everted."
[37] The Medical Officer found that the injury was dangerous to life and was caused by fire arm. Subhash succumbed to the injuries in the Hospital. Police submitted charge sheet under Section 302 IPC and Section 27 of the Arms Act, 1959. The appellant was convicted under Section 302 IPC. The appeal being preferred, against the said conviction, was dismissed by the High Court, thereby upholding the conviction and the sentence recorded by the learned Sessions Judge, under Section 302 IPC.
[38] Challenging the said judgment of the High Court an appeal being carried in the Supreme Court. Considering the factual background, on the touch stone of the principles laid down in the above referred case, the Supreme Court came to the conclusion that the conviction and the sentence under Section 302 IPC cannot be maintained. Accordingly, conviction was modified to one under Section 304 Part-II IPC. It was directed that the custodial sentence of 7 (seven) years would meet the ends of justice. Accordingly, the appeal was allowed to the said extent.
[39] In the case of Kalinder Barik (supra), it was noticed, by the Court, that the internal organs and skull of the deceased were found normal. According to the doctor, the death of the deceased was caused due to excessive bleeding. In the above- referred case, the doctor found the following injuries. Crl. Appeal No. 93(J)/ 2005 Page 16 of 32
"1. Contusion over right breast 2 cm × 2 cm.
2. Contusion over middle of forehead 3 cm × 2 cm.
3. Contusion over right scapular region 3 cm × 3 cm.
4. Contusion just below left scapular 3 cm × 2 cm.
5. Two contusions over lower back 3 cm × 2 cm each.
6. Multiple small abrasions over both lips.
7. Five teeth from upper jaw missing with fracture alveolus.
8. Four clean incised wounds behind left ear over left parietal area, 1?, 2½?, 1½? skull- deep.
9. Lacerated wound over middle or skull, 1? in size skull bone -- normal."
[40] The appellant was convicted under Section 302 IPC and sentenced to suffer life imprisonment plus a fine of Rs. 5,000/- An appeal by special leave, on the conviction and sentence imposed under Section 302 IPC, was made before the Supreme Court. The Supreme Court observed that none of the injuries could be said to be individually or collectively sufficient, in the ordinary course of nature, to cause death and that the same was a case where death became consequence because of excessive bleeding. The Supreme Court also observed that it was not a case, which could be brought under any one of the four clauses under Section 300 IPC and that the same remained within the range of culpable homicide not amounting to murder. Accordingly, conviction under Section 302 IPC was altered to one under Section 304 Part-II IPC and the sentence was modified as the sentence of rigorous imprisonment for 7 (seven) years. [41] In the light of the above discussions, we proceed to examine whether the offence committed by the appellant falls under Section 302 IPC or Section 304 IPC. As provided by Crl. Appeal No. 93(J)/ 2005 Page 17 of 32 Section 300 IPC, which reads as follows, except under the exceptions, prescribed by Section 300 IPC, culpable homicide is murder.
"300. Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death or-
Secondly, If is done with the intention of causing such bodily injury, as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly, I the person committing the act know that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as it likely to cause death, an commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1 - Culpable homicide is not murder if the offender whilst deprived of the power of self control by grave and sudden provocation, causes the death of death of any person by mistake or accident.
The above exception is subject to the following provisos:
First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly, That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2. Culpable homicide is not murder if the offender, in the exercise in good Crl. Appeal No. 93(J)/ 2005 Page 18 of 32 faith of the right of private defence of person or property, exceeds the power given to him by law and cause the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm that is necessary for the purpose of such defence. Exception 3. Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. Culpable homicide is not murder, if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel or without the offender having taken undue advantage or acted in a cruel unusual manner.
Explanation.- It is immaterial in such cases, which party offers the provocation or commits the first assault.
Exception 5. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death his own consent."
The Exception No (4) provides that the culpable homicide is not murder, if it is committed without premeditation, in a sudden fight and in the hit of passion upon a sudden quarrel or without the offender having taken undue advantage or acted in a cruel unusual manner. It is immaterial in such cases, which party offers the provocation or commits the first assault. [42] In the light of the above principles laid down by the Supreme Court, we find that, in the case at hand also, none of the injuries were caused on any vital part of the body. From the evidence of the Medical & Health Officer (PW-5), it has been Crl. Appeal No. 93(J)/ 2005 Page 19 of 32 clearly found that the deceased sustained cut injuries on his left hand and both the legs. As indicated above, the cause of death was massive haemorrhage from multiple cut injuries. Therefore, the injury caused by the appellant was not the immediate cause of the death. The death was caused due to excessive bleeding from the injuries sustained by him as aforesaid. [43] In the back drop of the above stated discussions and the attending facts and circumstances of the present case, it can be safely concluded that if the appellant had any intention to cause death of the deceased, then, he could have easily inflicted injuries on some vital part of the body of the deceased, who was un-armed; but he refrained from doing so and gave the blows on hand and legs, which are not vital organs. This conduct, on the part of the appellant, indicates that he had no intention to cause the death of the deceased. The cut injury on hand and legs, in ordinary course, do not lead to believe that such injury would cause death. As indicated in the case of Kalinder Barik (Supra), none of the injuries, in the case at hand, can be said to be individually or collectively sufficient, in the ordinary course of nature, to cause death. Therefore, in the light of the decision held in the case of Kalinder (supra), in the present case also, death was the consequence of excessive bleeding from injuries. Hence, from the nature of the injuries and parts of the body on which the same were caused, existence of intention to cause death or likelihood of causing death can't be interfered. [44] Considering the facts and circumstances of the case, it is found that, just before the arrival of the deceased and his son, the appellant was ploughing his paddy field. As he was Crl. Appeal No. 93(J)/ 2005 Page 20 of 32 working in the field, he might had the 'dao', within his reach. There is nothing to show that the appellant, finding the deceased, in the paddy field, had fetched the said dao from any place. Therefore, it appears that, as soon as the deceased and his son i.e. PW- 1 resisted him, the appellant being so provoked, probably, in the course of quarrel lost his control and in a hit of passion, had inflicted the injury on the hand and legs, which are not vital organs. There is nothing, on record, to show that the appellant had any pre plan or premeditation to cause the death of the deceased. Therefore, the 4th exception of Section 300 IPC being applicable, the act committed by the appellant, was not an act of murder under Section 300 IPC, but a culpable homicide not amounting to murder, as provided by Section 304 IPC. [45] Section 304 IPC, which provide punishment under two different circumstances, reads follows:
"304. Punishment for culpable homicide not amounting to murder.- Whenever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death or to causing such bodily injury as is likely to cause death:
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death."
[46] Section 304 IPC has two parts i.e. Part-I and Part-II. To hold a person guilty of the offence under Part-I of section 304 IPC, it must be proved, by adducing evidence, that culpable Crl. Appeal No. 93(J)/ 2005 Page 21 of 32 homicide not amounting to murder has been caused with intention to cause death of the deceased or by causing such bodily injury as is likely to cause death.
Part II of the said section is applicable in a case when the act of causing death is done without any intention to cause the death or to cause such bodily injury as is likely to cause death. [47] In view of the above considering entire aspects of the matter, more particularly, the nature of injuries as well as the parts of the body on which the injuries were inflicted, we find no difficulty to hold that the appellant committed the offence under Section 304 Part-II IPC.
[48] Therefore, we are inclined to hold that the learned trial Judge committed error by convicting the accused appellant under Section 302 IPC instead of Section 304 Prt. II IPC. In view of the above, we have no hesitation in holding that this is a fit case where the conviction should be modified to one under Section 304 Part- II IPC and accordingly, we do so. [49] It is submitted that the appellant, who is poor cultivator, has been undergoing imprisonment since the last 6 (six) years, i.e. from the date of conviction. Considering the facts and circumstances, under which the offence was committed and the period of imprisonment already undergone by him, we are of the considered opinion that the ends of justice would be met if the said period, already undergone, is awarded as the sentence instead of life imprisonment. Therefore, the sentence of life imprisonment, stands modified as the period undergone. No inference is made in respect of the fine amount. The fine amount Crl. Appeal No. 93(J)/ 2005 Page 22 of 32 if realized, shall be paid to the dependents, if any, of the deceased, as compensation.
[50]. We record our appreciation of the service rendered by the learned Amicus Curiae in assisting this Court, we direct that an amount of Rs. 3,500/- (Rupees three thousand five hundred) only be paid to the learned Amicus Curiae by the State Legal Service Authority as remuneration.
[51] Before we part with this record, we feel it appropriate to deal with the provision of Section 357-A Cr. P.C., which prescribes the requirement of providing compensation to the victim or his/her dependents, Section 357-A Cr. P.C., reads as follows:
"357-A. Victim Compensation Scheme.- (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shell decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
Crl. Appeal No. 93(J)/ 2005 Page 23 of 32
(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his defendants may make an application to the State or the District Legal Services Authority for award of compensation.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit."
[52] There can be no dispute that law has to keep pace with the changing needs of the society, keeping in mind the devolvement in the national as well as international level. [53] Article 21 of the Constitution of India, which guarantees the right to life, includes protection of life and property of all members of the society.
[54] The guarantees, as provided by the Constitution of India with regard to right to life and property, cannot be taken away without due procedure established by law. The law is also well settled that the Court has to give benefit of the theory of Crl. Appeal No. 93(J)/ 2005 Page 24 of 32 beyond all reasonable doubt, thereby acquitting the accused person, in appropriate cases, although there may be adverse reaction amongst the members of the society. The requirement of "proof beyond all reasonable doubt" is the fundamental and basic principle of criminal jurisprudence. In the case of Kali Ram Vs. State of H.P, AIR 1973 SC 2773 at paragraph 26, the Supreme Court observed, "however, the courts cannot remain oblivious to the dangers of unmerited acquittals either, which may result in a breakdown of justice system and lead to cynical disregard of law".
[55] The punishment awarded to the perpetrator of the crime cannot be sufficient to do justice to the victims or their dependents, who become helpless, requiring rehabilitation on account of the crime committed in respect of the victim. If sufficient financial assistance is not extended to such victim or his /her dependents, who need rehabilitation, then such person would become destitute creating vagrancy. Therefore, there is need to provide rehabilitation as provided in the provision of Section 357-A Cr. P.C. [56] There may be cases, where accused person goes un- punished. In such a case also, the question of rendering justice to the victim of the crime comes. There may be various reasons or consequences for which a guilty may go unpunished. Admittedly, in the absence of proof, beyond all reasonable doubt, the Court has no other option but to grant acquittal in favour of the accused person. The responsibility of procuring evidence to prove the guilt, beyond all reasonable doubt, is on the Crl. Appeal No. 93(J)/ 2005 Page 25 of 32 Investigating Agency, i.e. the prosecution. There may be sufficient lacunae/ defects in the investigating process resulting acquittal of the accused.
[57] The acquittal of the accused person is bound to create a feeling of insecurity in the minds of the victims of the crime as well as their dependents or relatives. [58] As defined by Section 2 (wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "Victim" includes his or her guardian or legal heir;.
[59] In response to the suggestions or recommendations, made by various institutions, including the Malimath Committee and with a view to bring confidence in the minds of sufferers, the victims of crime and their guardians or legal airs or their dependents, as the case may be, who suffered loss and injury and who required rehabilitation, the law makers have provided the provisions of Section 357-A Cr. P.C. [60] The provision of Section 357-A aforesaid has been inserted in the Code by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) w.e.f. 31.12.2009. This provision requires the State Government, in co-ordination with the Central Government, to prepare a scheme for the purpose of giving compensation to the victim of crime or his dependents. The purpose of the said scheme is to meet the need for rehabilitation of the victims and their dependents. As provided by sub-section (2) of Section 357-A, it is the duty of the court to Crl. Appeal No. 93(J)/ 2005 Page 26 of 32 make recommendation for compensation and in the event of such recommendation, the District Legal Services Authority or the State Legal Services authority, as the case may be, is to decide the quantum of compensation to be awarded under the Scheme referred to in sub-section (1).
[61] The learned Public Prosecutor, Assam has fairly submitted that no such scheme, as required by Section 357-A(1) of the Cr. P.C. has been prepared by the State Government. In view of the above, in order to implement the beneficial provision, prescribed by the statute, we are of the considered opinion that there is urgent need for preparing a scheme for providing fund for the purpose of giving compensation to the victim or his/ her dependents under Section 357-A Cr. P.C. It is needless to say that as no such scheme, as required by Section 357-A Cr. P.C., has been prepared, victims of crime, most of whom are from the marginalized section of the society, have been deprived of the financial benefits requiring for their rehabilitation.
There can be no reason as to why a victim or his/ her legal representatives/ dependents should not get adequate compensation, in the similar manner, as provided to the victims of vehicular accident, in terms of the minimum wages, as per schedule II of the Motor Vehicle Act, 1988.
As can be seen from order of a Division Bench of the High Court of Punjab and Haryana in C.W.P. 6319 of 2008 dated 13.01.2011, the Chandigarh Administration has proposed a scheme for paying compensation to the victims of crime, and the same is quoted below:
Sr. No Particulars of Minimum Maximum
Loss or injury Limit of Limit of
Crl. Appeal No. 93(J)/ 2005 Page 27 of 32
compensation compensation
1 Loss of life Rs. 3 lacs Rs. 5 lacs
2 Rape Rs. 2 lacs Rs. 3 lacs
3 Loss of any limb Rs. 2 lacs Rs. 3 lacs
or part of body
resulting in 80%
permanent
disability or
above.
4. Loss of any limb Rs. 1 lac Rs. 1.5 lacs
or part of body
resulting in
permanent
disability above
40% & below
80%.
5 Loss of any limb Rs. 60,000/- Rs. 1 lac
or part of body
resulting in
permanent
disability above
20% & below
40%.
6 Loss of any limb R. 50,000/- Rs. 50,000/
or part of body
resulting in
permanent
disability below
20%.
7 Mental agony R. 50,000/- R. 50,000/-
trauma to
women and child
victims in cases
where there is no
physical loss or
injury (such as
human
trafficking)
As per the said scheme, as proposed by the Chandigarh Administration, the minimum limit of compensation is Rs. 50,000/-
[62] As per 7th schedule of the Constitution of India, police and public orders are State subjects and as such the State Governments are primarily responsible for prevention, detection, registration and investigation of crime as well as for prosecution of the accused/ criminal. Therefore, it is also the responsibility of Crl. Appeal No. 93(J)/ 2005 Page 28 of 32 the State Government to protect the life and property of the citizen and to take appropriate measure for providing necessary funds for providing adequate compensation to the victims, their legal representatives or dependents, as the case may be. [63] Section 357-A Cr. P.C. itself provides that the State Government, in co-ordination with the Central Government, has to prepare the said scheme for providing fund for the purpose of payment of compensation to the victims, their legal airs and dependents. This implies that the Central Govt. also has the responsibility all together for implementation of the provisions prescribed under Section 357-A Cr. P.C. Thus, it is clear that the rehabilitation of the victim or their dependents and legal representatives, as the case may be, is also a part of criminal justice delivery system. This requirement is independent of punishment or acquittal awarded to the guilty person. Unless the victim or their dependent(s), in appropriate cases, are suitably compensated or rehabilitated, justice cannot be said to be done. Because the loss, injury and suffering caused to the victim or his/her dependents will continue, with the existence of a feeling of insecurity unless appropriate measure for rehabilitation is taken.
[64] In view of the above, there is no difficulty in understanding that it is the mandatory requirement of the statutory provisions, as prescribed by Section 357-A Cr. P.C.to provide adequate compensation to the victim, his/ her dependents or legal representatives, who require rehabilitation. Crl. Appeal No. 93(J)/ 2005 Page 29 of 32 [65] In the event of preparation of the scheme for the said purpose, the State Legal Services Authority or the District Legal Services Authority, as the case may be, are required to decide the quantum of compensation to be awarded to the victims under the scheme as per sub-section (2) of the Section 357-A Cr. P.C. and on receipt of the recommendation, or the application as prescribed under sub-section (4) of the said section, the concerned Legal Services Authority is required to make an enquiry for awarding adequate compensation by completing the enquiry within a period of 2 (two) months. Therefore, it is the responsibility of the Legal Services Authority to determine the dependency and the quantum of compensation for rehabilitation. [66] Though, the said scheme has not yet been prepared by the State Government, despite statutory requirement, the victims or their dependents, who are entitled to be rehabilitated under the statute, cannot be compelled to wait till such scheme is made and, thus, deprived from getting the benefit under the said statutory provision, which has come into force with effect from 31.12.2009. Therefore, the State Government is expected to prepare the scheme, as required by Section 357-A of the Cr. P.C., without further delay.
[67] In view of what has been discussed above, with a view to do justice to the victims or their dependents, under the provision of Section 357-A Cr. P.C. we make the following recommendations and directions:
(i) As an interim measure, an amount of Rs. 50,000/-shall be deposited by the State Government with the Crl. Appeal No. 93(J)/ 2005 Page 30 of 32 concerned District Legal Services Authority within a period of two months from this date.
(ii) The District Legal Services Authority, on receipt of the said money, shall make an enquiry to ascertain as to whether there is any victim and in the absence or death of victim, whether he/ she has any dependent(s), who suffered loss and injury as a result of the death of the deceased and also, if the victim, or, in the absence of the victim, the surviving dependent(s) or legal representative(s) need any rehabilitation.
(iii) Upon such enquiry, if it is found that the victim, or his dependent(s), if any, need rehabilitation, then the District Legal Services Authority shall initially release the said interim amount and thereafter direct payment of adequate compensation, as may be prescribed by the scheme, to be prepared by the State Government.
(iv) If the District Legal Services Authority, after due enquiry, arrives at the findings that there is no victim or dependent(s) or that the victim or the dependent(s) of the deceased/ victim does not need any rehabilitation, then the concerned District Legal Services Authority, shall refund the said amount of Rs. 50,000/-without delay, in favour of the State Government.
(v) The State Governments, within the jurisdiction of this Court shall take steps to prepare the scheme, as required by the statutory provision, prescribed by Section 357-A Cr. P.C., without further delay.
(vi) For the purpose of providing financial assistance towards rehabilitation of the victim or his/her Crl. Appeal No. 93(J)/ 2005 Page 31 of 32 dependents, in appropriate case, and for proper implementation of the scheme, provided by Section 357-A Cr. P.C, the Judicial Officers, working under the jurisdiction of this Court, during the course of trial, shall ascertain, (a) if there is any dependents of the victim (b) the financial status of the victim or his/ her dependent(s), if any, (c) whether the victim or his/ her dependents, as the case may be, needs any rehabilitation (d) the financial status of the accused person(s) and (e) such findings shall be reflected in the judgment.
70] Registry shall furnish copy of this judgment to the Chief Secretary to all the State Governments and the Judicial Officers, within the jurisdiction of this Court. [71] With the above observations, directions and modifications, as indicated above, this appeal is partly allowed to the extent aforesaid.
[72] Return the LCRs. [73] Let a copy of this judgment and order be furnished
to Mr. Z. Kamar, learned Public Prosecutor, Assam for doing the needful.
JUDGE CHIEF JUSTICE
Eam/...
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