High Court
Case Details
Crl.A. 34/2009 BEFORE THE HON’BLE CHIEF JUSTICE MR. A. K. GOEL THE HON’BLE MR. JUSTICE B. D. AGARWAL ( B D Agarwal, J) The appellant, herein, has been convicted under Section 302 of t he Indian Penal Code, 1860, (hereinafter, in short ’IPC’), vide judgment and ord er dated 21.10.2008, passed by the learned Sessions Judge, Kamrup, Guwahati, in Sessions Case No. 100 (K) of 1999. After convicting the appellant for the offenc e of murder he has been sentenced to undergo Imprisonment for Life and also to p ay fine of Rs. 5,000/- (Rupees Five Thousand), with default stipulation of furth er RI for 6 (six) months. Being aggrieved with the conviction and sentence the c onvict has preferred this appeal.
Legal Reasoning
Coming to the prosecution evidence we find that PWs-2, 3 and 9 h ave admitted in the chief examination that, on the relevant evening, both the ap pellant and the deceased were smoking ganja together and an altercation had take n place in between them. PWs-2 and 3 have been declared hostile solely on the gr ound that they did not give direct testimony regarding the incident though they had seen the appellant inflicting knife blows upon the deceased. It may be becau se PWs-2 and 3 had good relation with the appellant as they used to take ganja t ogether. However, these witnesses had given their statements under Section 164 C rPC claiming themselves to be the eye-witnesses of the incident of inflicting kn ife blows upon the deceased by the appellant Akan. Even otherwise, the fact of q uarrel between the appellant and the deceased has been stated by PWs-2 and 3 in their chief examination and reiterated in the cross-examination. Both PWs-2 and 3 also did not deny about their giving statements before the Judicial Magistrate . 9. PW-9 is the wife of PW-2. She has also deposed that initially th e appellant Akan Ali was also present in the group for smoking ganja. After some time her husband shouted and she came out and saw her husband holding the decea sed, who was profusely bleeding. PW-9 has also deposed that by that time, she di d not find Akan Ali in her courtyard, meaning thereby the appellant had fled awa y from the scene. In our considered opinion, if the appellant was innocent he sh ould not have fled away from the scene and, instead, he should have attended the deceased. 10. The prosecution is also relying upon the testimony of PW-8. As n oted earlier, he was a petition writer in the Court. This witness has deposed th at on 10.07.1995, one Nuruddin brought the accused to him telling him that the a ccused was his brother-in-law and he had killed a man. According to PW-8, the ac cused was carrying a medium size knife and the accused also told him that he had cut a man with the said knife. Thereafter, PW-8 accompanied the accused to the Police Station, where the accused surrendered himself with the knife. The fact o f surrender in the Police Station has been corroborated by the Police Officer (P W-10). PW-13 had produced the original GD Entry No. 337 dated 10.07.1995, wherei n, the fact of surrender of Akan Ali was recorded at 01:10 pm. 11. During cross-examination, PW-8 reiterated about extra-judicial c onfession made by the accused for the offence of murder. No suggestion was given to PW-8 that he had given a tainted testimony against the appellant with obliqu e motive. Similarly, we do not find any evidence to doubt about the authenticity of GD Entry No. 337, recording the surrender of the accused in the Police Stati on. In fact, the accused had also admitted about his surrender in the Police Sta tion while giving his statement under Section 313 CrPC, albeit, with a plea that he had surrendered out of fear. In addition to the oral evidence of PWs-2, 3, 8 and 9 we can also take into consideration that the FIR was lodged on the very n ext morning specifically naming the appellant as the assailant. 12. ty to hold that the offence was committed by the appellant and none else.
Arguments
2. We have heard Sri N Ahmed, learned counsel appearing on behalf o f the appellant as well as Sri D Das, learned Additional Public Prosecutor for t he State of Assam. We have also perused the impugned Judgment and the evidence o f the prosecution and the evidence tendered in the trial Court. 3. The gist of the prosecution case is that in the evening hours of 08.07.1995, the appellant, the deceased and few other persons had assembled in the house of PW-2 to smoke ganja. In the said gathering, the deceased questioned the appellant as to why he was spreading a rumour that one Mamud was visiting h is daughter in their house. When satisfactory reply did not come from the mouth of the accused he slapped the appellant Akan Ali on his face. Suddenly, the appe llant picked up a knife and inflicted cut wounds on the neck of the deceased, wh o died on the spot. 4. The son of the deceased lodged the FIR on the next day. On the b asis of this FIR, investigation was carried out and after the charge sheet, the appellant was tried for the offence of murder and he has been convicted accordin gly. The learned counsel for the appellant argued that no person had 5. witnessed the appellant inflicting knife blows upon the deceased and, as such, i t was not proper for the trial Court to convict the appellant. The learned couns el also submitted that even otherwise the offence was committed in a heat of pas sion and quarrel and without any intention to commit the offence of murder. 6. As could be gathered from the record, the prosecution examined a ltogether examined altogether 13 (thirteen) witnesses to prove the offence of mu rder. PW-1 is the Medical Officer, who has conducted autopsy; PWs-2 and 9 are th e persons in whose compound the deceased and the appellant were smoking ganja.; PW-3 was also present in the house of PW-2 and he was also smoking ’chilam’ alo ng with the appellant and the deceased; PW-4 is the son of the deceased; PW-5 is a co-villager and his testimony is a hearsay one; PW-6 is the scribe of the FIR ; PW-7 is the son-in-law of the deceased and his brief testimony is confined to the inquest on the dead body; PW-8 is a petition writer in the court; PWs-10,11, 12 and 13 are the Police Officers. Though the accused did not put up any defence plea during the cr 7. oss-examination of the prosecution witnesses or while giving his statement under Section 313 CrPC he did examine 2 (two) witnesses to bring a new story that the offence was committed by Mamud Ali and not by him. We reject the testimonies of DWs-1 and 2 at this stage itself since PWs-2, 3 and 9 have not stated anything about the presence of DWs-1 and 2 at the place of occurrence or even nearby. We have already noted earlier that the accused did not take this alibi at any stage of the trial. 8.
Decision
In view of the above corroborative evidence, we find no difficul 13. Now, the question is whether the offence of culpable homicide am ounted to murder. In this regard, we have to look at the medical findings and ot her evidence to ascertain as to whether the accused had intention to commit the offence of murder and if so, under what circumstances. 14. It is true that according to the autopsy doctor one cut wound wa s inflicted on the neck of the deceased. The wound was caused by a heavy sharp w eapon and it was so fatal that the victim could not survive even for a day. Henc e, we do not find any difficulty to hold that the wound was inflicted with defin ite intention to cause the death of the deceased. However, PWs-2 and 3 have admi tted the fact that a quarrel had taken place in between the deceased and the app ellant. Not only that, PW-2 has also admitted that it was the deceased who had f irst slapped upon the accused suspecting that the accused/appellant had spread a rumour in the village about illicit relationship in between his daughter and on e Mamud Ali. In this way, the offence was committed under provocation from the d eceased and also in the midst of quarrel. Accordingly Exceptions 1 and 4 to Sect ion 300 IPC are attracted. At the same time, the appellant did inflict repeated knife blows upon the deceased. The cumulative effect is that the offence of culp able homicide did not amount to murder. 15. In view of the aforesaid facts and circumstances, the conviction of the appellant is hereby converted from Section 302 to Section 304 Part-I IPC . Resultantly, the sentence is also reduced to 10 (ten) years RI for the offence under Section 304 Part-I IPC. However, the amount of fine of Rs. 5,000/- with d efault stipulation of further RI for 6 (six) months as awarded by the trial Cour t is hereby maintained. 16. the appeal stands dismissed. With the aforesaid modification in the conviction and sentence, 17. Section 357-A of the Code of Criminal Procedure, 1973 imposes an obligation upon the State Government to pay compensation to the victim’s family . Accordingly, as an interim compensation we award an amount of Rs.1,00000/- ( O ne Lac) to the victim’s family. 18. The Government of Assam is directed to pay compensation amount o f Rs. 1,00,000/- (Rupees One Lac) only to the family members of the victim. The Government shall deposit the compensation amount in the Office of the learned Se ssions Judge, Kamrup, within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the family members of the victim on proper identification and after obtaining p roper receipt. 19. With the aforesaid modifications in the conviction and sentences the appeal stands dismissed.