High Court
Case Details
CRL.A(J) 4/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY THE HON’BLE MR. JUSTICE M.R. PATHAK [Katakey, J.] The appellant, who has been convicted for the offence under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fin e of Rs.1,000/-, in default to undergo simple imprisonment for a period of 1(one ) month, vide judgment of conviction dated 18.11.2008 passed by the learned Sess ions Judge, Golaghat in Sessions Case No.5/2007, has filed the present appeal ch allenging the said judgment of conviction. 2.
Legal Reasoning
The prosecution case, in brief, is that on 23.08.2006 at about 5.30 P.M. the accused appellant Shri Shyamal Dang killed the deceased at Arengapar Naraga on Stone Crushing Quarry belonging to Bhabesh Deka (PW-1). On the basis of the f irst information report lodged by the PW-1 Bhabesh Deka, on 23.08.2006, Golaghat P.S. Case No.387/2006 under Section 302 IPC was registered. The police during i nvestigation arrested the accused person and also seized the weapon of assault, namely, the dao. The police also recorded the statement of the persons acquainte d with the facts of the case, under Section 161 Cr.P.C. and send the dead body f or post mortem examination. On completion of the investigation, charge-sheet dat ed 18.11.2006 was filed under Section 302 IPC. The case was committed for trial on 03.01.2007 by the learned S.D.J.M.(S), Golaghat, the same being exclusively t riable by the Court of Sessions. 3. The learned Sessions Judge framed charge under Section 302 IPC against t he accused appellant on 15.02.2007, which when read over and explained to the ac cused appellant, he pleaded not guilty and claimed to be tried. 4. The prosecution in order to bring home the charge has examined 10(ten) w itnesses, including the first informant Shri Bhabesh Deka as PW-1; Shri Golap Kh aklari, who was a co-worker of the appellant as PW-6; the learned Magistrate, wh o recorded the confessional statement as PW-4; the doctor who conducted the auto psy on the body of the deceased as PW-5 and also the Investigating Officer Shri Prabin Ch. Das, who conducted the investigation as PW-10. All the witnesses were cross-examined by the accused appellant. No defence witness was adduced. The st atement of the accused person under Section 313 Cr.P.C. has also been recorded. The confessional statement of the accused was recorded by the learned Magistrate , Shri K.S. Pathak (PW-4), on 28.08.2006. The said confessional statement has al so been proved and marked as Ext.-4. 5. The learned Sessions Judge, mainly based on the deposition of PW-6 and t he confessional statement of the accused (Ext.-4), recorded the judgment of conv iction and sentenced him as aforesaid.
Legal Reasoning
6. We have heard Mr. T.J. Mahanta, learned amicus curiae, who has been enga ged to argue the appeal on behalf of the accused appellant, appeal having been f iled from jail and the accused appellant being not represented by any counsel. W e have also heard Mr. N. Dutta, learned Addl. P.P., Assam. 7. Mr. Mahanta, learned amicus curiae, referring to the evidence of PW-6 as well as the confessional statement of the accused (Ext.-4), has submitted that the appellant’s case come within the exception of Section 300 IPC and as such th e learned Sessions Judge ought not to have convicted the appellant under Section 302 and instead would have convicted under Part-II of Section 304 IPC, there be ing evidence of deprivation of the power of self-control by the accused appellan t because of the grave and sudden provocation by the deceased. The learned couns el referring to the evidence has also submitted that the accused having lost the power of self-control, because of the utterances by the deceased inflicted the blow on his person by means of a dao, which he carried being a labourer and ther e being no intention on the part of the accused appellant to cause death or to c ause such bodily injury as is likely to cause death, it squarely comes within Pa rt-II of Section 304 IPC and hence the conviction of the appellant may be altere d from Section 302 IPC to Part-II of Section 304 IPC. Mr. Dutta, learned Addl. P.P., on the other hand, referring to the depos 8. ition of PW-6, has submitted that there is no grave and sudden provocation from the side of the deceased resulting in deprivation of power of self-control by th e accused appellant and hence the accused appellant’s case does not come within any of the exception to Section 300 IPC. The learned counsel, therefore, submits that the learned Sessions Judge has rightly convicted the accused appellant und er Section 302 IPC and sentenced him to undergo rigorous imprisonment for life. 9. he parties and also perused the evidence on record. We have considered the submissions advanced by the learned counsel for t 10. The accused appellant has not challenged the validity of the confessiona l statement (Ext.-4). It is not the case of the accused appellant that such conf essional statement cannot be the basis for conviction, the same being not volunt ary or having not recorded as required by law. In the confessional statement (Ex t.-4) the accused appellant has stated that since the deceased, on his return fr om work had rebuked him, he has lost the power of self-control because of the su dden provocation and the same was so grave that he has lost the power of self-co ntrol and as a result of which he has inflicted the injuries, resulting in the d eath of the deceased. PW-6 in his evidence has also stated that the deceased acc ompanied by his friend came to the camp and had tea with the accused as well as PW-6, whereafter the accused and the PW-6 left for work. According to this witne ss, both the deceased and his friend, though initially continued to be in the ca mp, his friend, however, left the camp sometimes later. He has further deposed t hat the deceased also left the camp at around 3 P.M. and came back, with biscuit s to have tea, to the camp. The further evidence of PW-6 is that when he and the accused appellant came back after the day’s work, they have seen the deceased i n the camp and took tea together. Thereafter, according to this witness, when th e accused appellant refused to go out to fetch the water, this witness went out and while fetching water, he heard the commotion and came back running and saw t he accused appellant with a blood strain dao. It is also in evidence that therea fter the accused appellant proceeded towards the police station to surrender and on the way he has been arrested. The evidence adduced by the prosecution, therefore, reveals that the acc 11. used appellant came back to the camp at around 5 P.M. after the day’s work. Then there was some altercation between the accused appellant and the deceased, whic h, however, has not been witnessed by anybody but was heard by PW-6. In the conf essional statement, as noticed above, it has been stated by the accused appellan t that he was rebuked by the deceased in such a manner that he was lost control on himself. Exception-1 to Section 300 IPC provides that culpable homicide is not mu 12. rder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or c auses the death of any other person by mistake or accident. The Apex Court in K. M. Nanavati Vs. State of Maharashtra reported in AIR 1962 SC 605 has held that t he test of (cid:28)grave and sudden (cid:29) provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which t he accused was placed, would be so provoked as to lose his self-control. It has further been observed that in India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring h is act within the first exception to Section 300 of the Indian Penal Code. In Su rinder Kumar Vs. Union Territory, Chandigarh reported in AIR 1989 SC 1094 the Ap ex Court has held that to invoke the exception to Section 300 IPC, the ingredien ts to constitute such exception must be proved when the culpable homicide is not murder. 13. Whether there is grave and sudden provocation which leads to the depriva tion of power of self-control, depends on the facts of each case. Utterance of s ome words by the deceased to a particular class in the society though may amount to grave and sudden provocation thereby depriving the power of self-control, th e utterance of same words to the person belonging to other class in society may not be the grave and sudden provocation amounting to deprivation of the power of self-control. 14. In the instant case, the accused appellant came back from the day’s hard work as a labour. On returning to the camp he saw the deceased sitting in the c amp. There was admittedly commotion and quarrel between the deceased and the app ellant. After the whole day’s hard work even the utterances questioning the accu sed appellant why he has teased the girl may amount to grave and sudden provocat ion thereby depriving the self-control. As noticed above, in the instant case, t he utterance by the deceased has provoked the accused appellant and such provoca tion was so grave that he has lost the power of self-control and inflicted the b lows. The number of blows inflicted is not material for that purpose. 15. In view of what has been discussed above, we are of the view that the ap pellant’s case comes within the first exception of Section 300 IPC and hence it is a culpable homicide not amounting to murder, consequently he is to be punishe d under Section 304 IPC. The question which now requires consideration whether t he appellant is to be punished under Part-I or Part-II of Section 304 IPC. To pu nish a person under Part-I of Section 304 it must be with the intention of causi ng death or causing of such bodily injury as is likely to cause death and in cas e of Part-II of Section 304 act done must be with the knowledge that it is likel y to cause death but without any intention to cause death or to cause such bodil y injury as is likely to cause death. The evidence as discussed above, suggest t hat though the accused appellant may not have intention to cause death or he, ho wever, had the intention to cause such bodily injury as is likely to cause death and hence the appellant is to be punished under Part-I of Section 304 IPC. Acco rdingly we sentenced the accused appellant to undergo rigorous imprisonment for 10(ten) years and to pay a fine of Rs.5,000/-, in default to undergo further rig orous imprisonment for 6(six) months. In case the fine is realized, the same sha ll be paid to the family of the deceased. The judgment of conviction is altered from 302 to 304 Part-I IPC. 16. e. The appeal is accordingly partly allowed to the extent as indicated abov Before parting we place on record our appreciation to the service render 17. ed by Mr. T.J. Mahanta, learned amicus curiae, who shall be entitled to the fee of Rs.5,000/-, payable by the Govt. of Assam.