Gauhati High Court
Sri Montu Bhumij vs The State Of Assam And 3 Ors on 30 November, 2021
Author: Suman Shyam
Bench: Suman Shyam
Page No.# 1/20
GAHC010219952019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./9/2020
SRI MONTU BHUMIJ
S/O LT MOHAN BHUMIJ
R/O VILLAGE 2 NO. DIHINGIA GAON
PS- BORPATHAR
DIST- KARBI ANGLONG,ASSAM
VERSUS
THE STATE OF ASSAM AND 3 ORS
REPRESENTED BY PP , ASSAM
2:BHARALI GOGOI
S/O LT KULA GOGOI
R/O VILLAGE DIHINGIA GAON
P.S- BARPATHAR
DIST- KARBI ANGLONG
ASSAM
PIN-784001
3:SWARUP GOGOI
S/O - KRISHNA KANT GOGOI
R/O- VILLAGE DIHINGIA GAON
P.S- BARPATHAR
DIST- KARBI ANGLONG
ASSAM
PIN-784001
4:JOGESHWAR GOGOI
S/O - MOHAN GOGOI
Page No.# 2/20
R/O-VILLAGE DIHINGIA GAON
P.S- BARPATHAR
DIST- KARBI ANGLONG
ASSAM
PIN-78400
Advocate for the Petitioner : MS. J PAUL
Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY Date of hearing : 30.11.2021.
Date of judgment : 30.11.2021.
JUDGMENT AND ORDER (Oral)
(Suman Shyam, J)
Heard Ms. J. Paul, learned counsel appearing for the sole appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State/respondent No.1. None has appeared for the informant/respondent No.2.
2. By the impugned judgment and order dated11.04.2019 passed by the learned Sessions Judge, Karbi Anglong, Diphu, Assam in connection with Sessions Case No.40/2018 the sole appellant Sri Montu Bhumij was convicted under Section 302 of the Indian Penal Code for committing the murder of his uncle Babulal Nagbangshi and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.5000/- and in default, to suffer simple imprisonment for another six months. By filing Page No.# 3/20 the instant appeal the appellant has assailed the judgment and order dated 11.04.2019 passed by the learned Sessions Judge, Karbi Anglong.
3. The prosecution case, in a nutshell, is to the effect that on 04.03.2018 at about 7.30 p.m. the appellant/accused had picked up a quarrel with his maternal uncle Babulal Nagbangshi. Unable to control himself, the appellant had hacked his uncle Babulal Nagbangshi with a "mit-dao" leading to his death.
4. On 04.03.2018 Sri Bharali Gogoi i.e. the President of the VDP of the village, had lodged an ejahar before the Officer-in-Charge, Borpathar Police Station, Karbi Anglong reporting the incident. Based on the ejahar dated 04.03.2018, Borpathar P.S. Case No.14/2018 was registered under Section 302 of the IPC. On completion of the investigation the Investigating Officer (I.O.) had laid the charge-sheet against the accused, based on which, the learned Sessions Judge had framed charge under Section 302 of the IPC against the accused. Since the accused had pleaded innocence, the matter went up for trial.
5. During trial, the prosecution side had examined as many as 14 witnesses to bring home the charge framed against the accused. In his statement recorded under Section 313 of the Cr.P.C. the accused had denied all the incriminating circumstances put to him. However, the defence side did not adduce any evidence.
6. Upon conclusion of trial the learned Sessions Judge had passed the impugned judgment and order dated 11.04.2019 convicting the appellant under Section 302 of the IPC and sentenced him as aforesaid.
7. One of the three informants in this case, Sri Bharali Gogoi, was the President of Page No.# 4/20 the VDP. He was examined as prosecution witness No.1 (PW-1). This witness has deposed before the court that the incident took place on 04.03.2018. The deceased was the maternal uncle of the accused. On the day of occurrence the accused, after committing the incident, had appeared before Swarup Gogoi (PW-2), the Secretary of the VDP, with a "mit-dao" and told him that he had hacked his maternal uncle. The VDP Secretary thereafter, informed him over phone. Then he came to the house of Swarup Gogoi and saw that the accused was standing with a dao in his hand. Thereafter, Swarup Gogoi and he, together took the accused to the Borpathar Police Station along with the dao and handed him over to the police. PW-1 has confirmed that he had lodged the ejahar and Ext-1 is the said ejahar. During his cross-examination, PW-1 has stated that around the time of the occurrence the deceased was staying with the accused in the house of the latter. According to the PW-1, the deceased used to often consume liquor and thereafter, abuse the accused and his wife by using slang language. In the year 2012 the accused had informed him and the police in writing that the deceased had chased him with a dao so as to kill him. Accordingly, a meeting was held in the village and the people present in the meeting had asked the accused to pardon the deceased since he was an elderly person. Thereafter, the accused had kept the deceased in his house and was treating him with care.
8. PW-2, Sri Swarup Gogoi was the Secretary of the VDP of village Dihingia Gaon when the incident took place. PW-2 has deposed that the incident took place on 04.03.2018. During the evening hours, the accused came to his house but since he was not available in his house the accused went to the house of Jogeswar Page No.# 5/20 Gogoi(PW-3) i.e. the "Nayak" of the VDP. At that time he was in a nearby house. As such, Jogeswar Gogoi had sent a boy to call him and then he returned back to his house. On arriving there, he had seen that the accused and members of his family were present there. He had also seen a "mit-dao" in the hand of the accused. When he enquired about it the accused had told him that since the deceased had harassed him in various ways he had killed the deceased by hacking him with the dao in his hand. When the President of the VDP (PW-1) was informed about the matter, he came down and then they took the accused to the Borpathar Police Station along with the dao and handed him over to the police. PW-2 has also stated that the police had seized the "mit-dao" from the accused in his presence vide seizure-list Ext-2 and Ext-2(1) is his signature. During his cross-examination, PW-2 has stated that the deceased had been living in the house of the accused for past 10/12 years. He had heard that quarrel took place between the accused and the deceased very often and that the deceased used to initiate the quarrel. PW-2 has further stated that the accused had told him that being unable to bear the trouble caused by the deceased he had killed him with the dao in his hand. The accused also told him that he wanted to surrender in the Police Station.
9. PW-3, Srii Jogeswar Gogoi has deposed that the incident took place at around 7.30 pm on 04.03.2018. On that day the accused came to his place along with his mother and paternal aunt with a dao in his hand. At that time the witness was the "Nayak" of the VDP. The accused had told him that following a quarrel with his maternal uncle Babulal Nagbangshi, he had killed Babulal by hacking him with the dao in his hand. PW-3 has further deposed that he immediately informed the Page No.# 6/20 Secretary of the VDP, Swarup Gogoi (PW-2) who came to his house and when he asked accused Montu Bhumij he told him that he had killed his maternal uncle Babulal Nagbangshi. Thereafter, he along with PW-1, Bharali Gogoi and PW-2, Swarup Gogoi, took the accused to Borpathar Police Station and handed him over to the police. PW-3 has also proved his signature Ext-1(2) in the ejahar and stated that the police had seized the dao from the accused vide seizure-list Ext-2 and Ext-2(1) was his signature. M. Ext-1 is the dao which was seized by the police. This witness has also deposed that inquest was conducted on the dead body and thereafter, a report (Ext-3) was prepared. He is a signatory to the inquest report Ext-3.
10. In his cross-examination, PW-3 has clarified that he did not witness the incident. The accused had confessed before him that he had made a mistake and asked him to hand over him (accused) to the police. PW-3 has further stated that the accused had told him that the deceased used to quarrel with him after consuming liquor.
11. PW-4, Smti Jinu Bhumij is the wife of the accused. PW-4 has deposed that the deceased was her maternal uncle. According to PW-4, the deceased used to consume liquor and create nuisance in the house. On the day of occurrence, at around 7.00 pm the deceased had entered her kitchen threatening to cut her and her sister and their two children. At that time, she had shouted and her husband (accused) entered the kitchen. Out of fear they came out of the kitchen. When they left the kitchen the accused and the deceased were inside the kitchen. After about an hour she came back in the kitchen and saw that the deceased was lying dead. After some time Swarup Gogoi (PW-2) came to their house and informed her that the Page No.# 7/20 accused had killed the deceased and surrendered in the Police Station. After that police came to the place of occurrence and held inquest on the dead body. In her cross-examination, this witness has further deposed that they lived in the same house along with the deceased and that the deceased used to often quarrel with her, both in the presence as well as in the absence of the accused. She has also stated that on the day of occurrence, when the deceased was giving fodder to the pigs, a quarrel took place and the deceased went to hack him. At that time, he rushed to the kitchen and the accused had entered the kitchen. This witness has also deposed that had the accused not come to the kitchen the deceased would have hacked her and others.
12. PW-5, Smti Bimala Bhumij is the mother of the accused. She has also confirmed in her testimony that the occurrence took place in the month of March, 2018 at about 7.00 pm and the accused came to their house and told her that he would go to the house of the VDP Secretary. He then ran towards the house of VDP Secretary. She also went to the house of the Secretary, VDP. In the house of the Secretary, VDP, the accused had confessed that he had killed his uncle Babulal Nagbangshi. At that time the VDP Secretary Jogeswar Gogoi (PW-3) had said that he will go to the "thana" along with the accused and at that time Swarup Gogoi (PW-2) also came there. Both of them then took the accused to Borpathar Police Station. This witness has stated that she had entered the house of the accused and saw the deceased Babulal lying on the floor. He was already dead. Police took the dead body of the deceased to the "thana". In her cross-examination, PW-5 has stated that the deceased was her elder brother and that the deceased used to quarrel with the Page No.# 8/20 accused without any reason.
13. PW-6, Bulbul Bhumij is the brother of the accused and he is also an inquest witness. PW-6 has proved his signature Ext-3(2) in the inquest report Ext-3. This witness had not seen the occurrence but had later heard about it when he reached home at about 8.30 pm. In his cross-examination, PW-6 has deposed that his deceased uncle was staying with the accused and the deceased used to often consume alcohol and then start quarrel with the accused.
14. PW-7, Sri Dinesh Tasa is married to the younger sister of the deceased. He also did not see the occurrence but came to know about it subsequently and then he came to the place of occurrence and saw cut marks and injury near the neck and the back of the head of the deceased. This witness has deposed that he had heard that a quarrel took place between the accused and the deceased regarding a plot of land following which, the deceased was killed.
15. It appears that PW-8, Smti Binu Bhumij is also another wife of the accused. She also appears to be the niece of the deceased. This witness has deposed that the incident took place around 6/7 pm in the evening. At that time the deceased came home after consuming alcohol. Her husband i.e. the accused went to give fodder to the pigs. At that time the deceased had chased the accused with a dao in his hand. The deceased also chased her threatening to cut her. Then she screamed and the accused came to the house running. At that time she left the place with her three year old child leaving the accused and the deceased back home. When she returned home after about half an hour she saw that the deceased was lying dead Page No.# 9/20 inside a room and the accused was sitting outside the house. Thereafter, the accused had himself gone to the house of the Secretary, VDP and informed him about the incident. Thereafter, the VDP Secretary took the accused to the Police Station. During her cross-examination the PW-8 has stated that at the time of the incident the deceased was in an inebriated state and he had consumed liquor and quarrelled with the accused on earlier occasions also. On the day of the incident the deceased had opened the door and entered the house by threatening to cut her. At that time she came out through another door and fled. She did not see the accused hacking the deceased.
16. Smti Kajer Hansepi is the daughter of the deceased. She was examined by the prosecution side as PW-9. This witness had not seen the occurrence but has deposed that she was informed about the death of her father after the dead body had been taken to the Borpathar Police Station. She had seen cut marks in the neck, cheek and back of the deceased. When the accused went to the Police Station he had confessed to have killed the deceased by inflicting cuts. PW-9 has deposed that she thinks that the accused had killed the deceased out of his greed for property. In her cross-examination, PW-9 has deposed that the accused had given shelter to the deceased in his house as the latter did not have any immovable property.
17. Dr. Hiteswar Teron was on duty at the Diphu Civil Hospital on 05.03.2018 as the SDMO & HO and he had conducted post-mortem examination on the deceased. Dr. Teron was examined as PW-10. As per the evidence of PW-10, the following injuries were found in the dead body :-
Page No.# 10/20 "External Appearance : Rigor mortis partially developed. Both the eyes opened and incised wound seen in his face. Abrasion was also seen in his right hand at the middle finger and dorsum of forearms. There is incised wound in his face behind the left ear. The incise wound in the face was about 5 inches in length and 2 inches in depth just left to the nose extending from chin to left eye. It cut through the soft tissue of the face along with facial bond with the jaws. In the left side of the head just behind the ear the wound is about 8 inches long and 2 inches depth cut through the soft tissue, skull bones and deep inside the brain matters."
PW-10 had opined that the deceased had died due to neurogenic shock along with hypocalcaemia caused by incised wound injuries in his head by sharp weapon. PW- 10 has also proved the post-mortem report Ext-4.
18. PW-11, A. Bemhoi Chanu was posted as Executive Magistrate at Bokajan on 05.03.2018. On the request of the I.O., he had conducted inquest over the dead body and submitted inquest report Ext-3 wherein it was mentioned that there was cut injuries over the left side of the head and mouth of the deceased who was found dead lying on the floor. PW-11 has proved the inquest report Ext-3.
19. PW-12, Sri Podmeswar Saud was working as the Second Officer at the Borpathar Police Station on 04.03.2018 and he has deposed that on that day, Sri Bharali Gogoi (PW-1), the President of the VDP of Dihingia Gaon, Sri Jogeswar Gogoi (PW-3) and Sri Swarup Gogoi (PW-2) had lodged an ejahar with the Borpathar Police Station informing the police that around 7.30 pm, a quarrel took place between Page No.# 11/20 accused Montu Bhumij and deceased Babulal Nagbangshi whereby, the accused had killed his maternal uncle by means of a "mit-dao" and confessed his guilt before the VDP of Dihingia Gaon. PW-12 has further deposed that on receipt of the ejahar, Borpathar P.S. Case No.14/2018 was registered under Section 302 of the IPC and he was entrusted with the task of carrying out investigation in the matter. During investigation, he had interrogated the accused Montu Bhumij, seized a dao from him which was used for killing vide seizure-list Ext-2. During interrogation the accused had confessed that he had killed the deceased. As such, he had sent the accused to the court for recording his confessional statement under Section 164 Cr.P.C. The I.O. has further stated that he had collected the post-mortem report, inquest report, drew sketch map, recorded statement of the witnesses and on completion of the investigation submitted charge-sheet against the accused under Section 302 of the IPC.
20. PW-13, Sri Tarun Dey was working as the Munsiff-cum-Judicial Magistrate 1 st Class at Diphu, Karbi Anglong and had recorded the confessional statement of the accused (Ext-6). PW-13 has deposed before the court that the confessional statement of the accused was recorded after adhering to all the procedural formalities and also after giving sufficient time for reflection to the accused and on being satisfied that the accused was making the confession voluntarily and out of his free will.
21. PW-14, Sri Krishna Gogoi is another villager, who had deposed that on the day of the incident he had come to the house of Jogeswar Gogoi and saw that the Page No.# 12/20 accused Montu Bhumij was present there. When he was asked by Jogeswar Gogoi (PW-3) as to what had happened, the accused had replied that he had killed Babulal Nagbangshi. Then he came to the house of the accused along with PW-3 and saw the deceased Babulal was lying dead.
22. Based on the evidence brought on record by the prosecution side the learned Sessions Judge had convicted the appellant under Section 302 of the IPC and sentenced him as aforesaid.
23. Ms. J. Paul, learned counsel for the appellant, has submitted, in her usual fairness, that the occurrence is not being disputed by the appellant and the fact that he had hacked the deceased with a dao is also not in dispute. Ms. Paul, however, submits that there is evidence on record to show that the deceased was the aggressor who had attacked the wife and children of the accused with a view to inflict grievous injury on them. Confronted with such a situation, the accused had acted in exercise of his right of self defence and protect his family leading to the death of the deceased. Under the circumstances, submits Ms. Paul, the accused would be entitled to the protection of Section 96 of the IPC. Alternately, the learned counsel has argued that the accused had acted under grave and sudden provocation from the deceased and, therefore, this case would come under Exception -4 of Section 300 of the IPC.
24. Ms. B. Bhuyan, learned Addl. P.P., Assam, on the other hand, has argued that the involvement of the accused in the killing of the deceased is well established not only from the evidence brought on record by the prosecution side but also on the Page No.# 13/20 basis of the confessional statement of the accused recorded under Section 164 Cr.P.C. as well as the extra-judicial confession brought on record by the prosecution. Under the circumstances, there is no scope for this Court to interfere with the conviction and the sentence awarded by the learned Sessions Judge to the accused/appellant in this case. Ms. Bhuyan has, however, fairly submitted that grave and sudden provocation upon the accused cannot be ruled out in this case.
25. We have considered the submission advanced by the learned counsel for both the sides and have also gone through the evidence brought on record.
26. In the instant case, it has been established beyond doubt that the incident took place on 04.03.2018 in the evening hours i.e. at around 7.00 pm in the house of the accused. The fact that the deceased had suffered a homicidal death is also firmly established from the inquest report Ext-3 as well as the post-mortem report Ext-4. A reading of the confessional statement of the accused (Ext-6) clearly goes to show that he had hacked his uncle Babulal Nagbangshi with a "mit-dao" leading to his death. The evidence adduced by the PW-13 further goes to establish that the confessional statement of the accused was recorded by adhering to all the procedural formalities and after giving sufficient time to the accused for reflection. Therefore, we have no reason to doubt that the confession made by the accused before the learned Magistrate was not voluntary and truthful. The testimonies of PWs- 1, 2 and 3 also brings on record the extra-judicial confession made by the accused admitting that it is he who had hacked his uncle Babulal to death. Such extrajudicial confession of the accused finds due corroboration from the testimony of PW-9 as well Page No.# 14/20 as from the Ext-6. Moreover, it has come out from the evidence of PWs-2 & 3 that the accused had offered to surrender before the police along with the "mit-dao". Accordingly, the accused had come to the house of the VDP Secretary immediately after the incident and narrated the entire incident. It is also firmly established from the evidence on record that the deceased used to live in the house of the accused and his dead body was found in the house of the accused immediately after the incident. From the above, there can be no manner of doubt that it is none other than the accused who had hacked the deceased by a "mit-dao" resulting into his death.
27. The next question that would arise for consideration in this case is as to whether the accused had acted in exercise of his right of private defence and therefore, would he be entitled to the protection of Section 96 of the I.P.C. Section 96 of the IPC lays down that nothing is an offence which is done in exercise of right of private defence. Section 97 of the IPC lays down the right of private defence of body and property which reads as follows :-
"97. Right of private defence of the body and of property.--Every person has a right, subject to the restrictions contained in section 99, to defend-- First. -- His own body, and the body of any other person, against any offence affecting the human body;
Secondly. --The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
28. Section 99 of the IPC, however, inter-alia provides that there is no right of private defence in cases where there is time to have recourse to the protection of Page No.# 15/20 public authorities. The right of private defence also in no case can extend to inflicting of more harm than what is necessary to inflict for the purpose of defence.
29. In the case of Darshan Singh vs. State of Punjab & another reported in (2010) 2 SCC 333, the Supreme Court had the occasion to deal with the plea of private defence taken by the accused. While laying down the principles governing the issue, it has been held that self preservation is a basic human instinct and the same is recognised by the criminal jurisprudence of all civilized country. However, while highlighting the reasonable limits in recognizing the plea of private defence, the Apex Court has laid down the following guiding principles after a threadbare analysis of the law laid down in a number of previous decisions on the subject :-
"58. The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and 35 civilized countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-
creation.
(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminus with the duration of such Page No.# 16/20 apprehension. 6
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
30. In Raghbir Singh and others vs. State of Haryana reported in (2008) 16 SCC 33 it has further been observed that Section 96 of the IPC does not define the expression "right of private defence". It merely indicates that nothing is an offence which is done in exercise of such right. Whether, in a particular circumstance, a person legitimately acted in exercise of right of private defence is a question of fact to be determined on the facts and circumstances of each case and no test in the abstract form for determining such question can be laid down.
31. By following the decision in the case of Darshan Singh (supra) it has further been observed in the case of Sukumaran vs. State Rep. by the Inspector of Police reported in (2019)15 SCC 117 that right of private defence can be exercised when Page No.# 17/20 there is a reasonable apprehension that death or grievous hurt would be caused to that person or his companion.
32. In the present case, it has come out from the evidence of PWs-4 and 8 that on the day of the incident it is the deceased who, in an inebriated condition, had entered the house and threatened to inflict injury upon the PWs-4 and 8 and their children. However, there is no evidence to show that at that time the deceased was actually in a position to inflict injury to the accused or his family members. It is apparent from the evidence of PWs-4 and 8 that when the deceased had chased them, they ran away from the place and returned after about an hour. During that time the accused and the deceased were the only persons at home. There is no evidence to indicate that the PWs-4 and 8 or their children had suffered any injury from the deceased. It is also not clear as to why the accused did not call for help from the VDP Secretary instead of hacking the deceased with a dao. The evidence available on record is also insufficient to show that the deceased had suddenly confronted the accused and there was no way to avert the impending danger than to kill him. We are, therefore, of the considered opinion that this is not a case where the right of private defence was available to the accused. Moreover, there is also no explanation as to why, in purported exercise of right of private defence, it became necessary for the accused to hack the deceased in the vital part of the body which lead to his death.
33. We have noticed that the accused/appellant had taken the plea regarding right of private defence before the learned trial court. However, such plea of the Page No.# 18/20 accused was negated by the learned court below by recording a finding that the accused had failed to prove that there was a reasonable apprehension of death or grievous injury to himself or his companion and hence, justifying the exercise of his right of private defence. Having regard to the facts and circumstances of the case we do not find any valid ground to disagree with such conclusion recorded by the learned trial court in so far as the plea regarding right of private defence taken by the appellant is concerned. We are also of the view that none of the conditions laid down in the case of Darshan Singh supra) would be applicable to the facts of this case.
34. Having held as above, we have also noticed that there is sufficient evidence available on record to show that immediately before the occurrence, there was a quarrel between the accused and the deceased and the deceased had also sufficiently provoked the accused person. It has come out from the testimony of PW-4 that a quarrel took place between the accused and the deceased when the former was giving fodder to the pigs. At that time, the deceased was in an inebriated state. There is evidence to also show that the deceased used to use slang language to abuse the family members of the accused and also used to chase them. PW-8 has stated in her examination-in-chief that at the time when the accused was giving fodder to the pigs, the deceased had chased him with a dao in his hand. From the above evidence, it is clear that there was grave and sudden provocation from the deceased upon the accused immediately before the occurrence and therefore, it cannot be ruled out that the accused in this case had acted under a heat of passion, having lost his self-control.
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35. Section 300 of the IPC lays down the offence of culpable homicide amounting to murder. The exceptions to Section 300 lays down the culpable homicides which would not amount to murder. Exception-4 of Section 300 contains one such condition which is reproduced herein below for ready reference :-
"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 and without the offender having taken undue advantage or acted in a cruel or unusual manner."
36. Having regard to the facts and circumstances of the case as well as the evidence brought on record, we are of the opinion that the present case would come under the sweep of Exception 4 of Section 300. In other words, we are convinced that in this case, the accused had acted without premeditation. The deceased was the aggressor in this case. Being provoked by the deceased, the accused had acted in a heat of passion having lost his self-control. That apart, we also find that after the incident, the accused did not act with cruelty or in any unusual manner but had approached the Secretary of the VDP by offering to surrender before the police. The testimony of PW-3 also goes to show that the accused was expressing remorse over his conduct in hacking his uncle with a dao. It also transpires from the evidence on record that the deceased did not have any immovable property or house to stay and therefore, he was living with the accused for past several years. It is, therefore, difficult to believe that having treated the deceased with such kindness, the accused would hack him to death with a dao save and except acting under grave and sudden provocation. Therefore, although it Page No.# 20/20 cannot be said that the accused did not have the knowledge that it would cause death to the deceased, he certainly did not have the intent to cause death to the deceased.
37. For the reasons stated herein above, we are of the view that the present case would come under Section 304 Part-II of the IPC. We accordingly, set aside the conviction of the appellant under Section 302 of the IPC and convict him under Section 304 Part-II of the IPC. The appellant is awarded sentence of 7 ½ (seven and half) years of rigorous imprisonment. The fine imposed by the learned Sessions Judge would, however, remain unaltered.
The period of jail sentence already undergone by the appellant shall stand set off and/or reduced from the 7 ½ years of rigorous imprisonment awarded to the appellant by this Court.
The appeal stands partly allowed.
Send back the LCR.
JUDGE JUDGE T U Choudhury Comparing Assistant