High Court
Case Details
Crl.A. 43/2008 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA AND HON’BLE MR JUSTICE P.K. SAIKIA This appeal is directed against the judgment dated 29.01.2008 passed by Addl. Se ssions Judge, FTC No. 4, Kamrup,Guwahati, in Sessions Case No. 185 (K)/2007 con victing the appellant Madan Dey for committing offence u/s 302 IPC and sentencin g him to imprisonment for life and to pay a fine of Rs. 1,000/- in default R.I. for 6 months for the aforesaid offence. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, Sri Mad an Dey hereinafter referred to as accused person, has preferred this appeal citi ng several infirmities in the judgment impugned in this appeal. 3. The facts necessary for disposal of the present appeal are that on 5.6.2 006 at about 2.30 pm at Panikhaiti Chariali under Pragjotishpur Police Station, an altercation took place between the accused and the deceased. The altercation occurred near the shop of one Shankar. The altercation soon turned violent and s oon after the quarrel, accused Madan Dey took out a bottle of cold drink from th e nearby shop, broke it into pieces and attacked Amal Dey on his chest with that broken piece of cold drink bottle for which the deceased died a spontaneous dea
Legal Reasoning
th at the place of occurrence itself. 4. An FIR to this effect on being lodged with the I/C Panikhaiti Petrol Pos t, police made a GD entry thereon and forwarded the same to O.C., Pragjotishpur Police Station for taking necessary action. 5. On receipt of the FIR, Pragjotish Police Station registered the case and orde red investigation. Mr. A. Talukdar, I/C took up the investigation. On being so e ntrusted, the I.O. visited the place of occurrence, examined the witnesses, sent the dead body to hospital for post mortem examination, did other needful and on completion of investigation submitted charge-sheet u/s 302 IPC against the accu sed person and forwarded him to the court to stand trial. 6. The Magistrate before whom charge-sheet was so laid committed the case t o the Court of Sessions since the offence u/s 302 IPC is exclusively triable by the Court of Sessions. The learned Sessions Judge, Kamrup, Guwahati on receipt o f the case on commitment, transferred the case to the file of Addl. Sessions Jud ge FTC No. 4, Kamrup, Guwahati for disposal in accordance with law. The Addl. S essions Judge, FTC on receipt of the case on transfer and on hearing the parties framed charge u/s 302 IPC and charge so framed, on being read over and explaine d to the accused person, he pleaded not guilty and claimed to be tried. 7. During trial, the prosecution has examined as many as 18 witnesses inclu ding the informant, M.O. as well as the police officer who investigated the case . The statement of the accused u/s 313 CrPC was recorded. The accused admitted h aving involved in a quarrel where they exchanged blows but he denied having atta cked and injured the deceased with a broken piece of bottle of cold drink. He ho wever, did not adduce any evidence of his own. On hearing the arguments advanced by the learned counsel for the parties 8. , the learned trial court held the accused guilty of offence u/s 302 IPC, convic ted him there-under and sentenced him as aforesaid. It is that judgment which ha s been assailed in this appeal citing several infirmities therein. Opening up arguments on behalf of the accused person, Mr. Niloy Dutta, l 9. earned Senior Counsel assisted by Mr. Choudhury, quite arduously submitted that on the eventful day, there was a quarrel between the accused and the deceased wh ich turned violent all of a sudden and in that quarrel, the accused out of grave and sudden provocation and also being angered by the sudden fight attacked the deceased of course without any intention of causing his death. Unfortunately, th e blow which he inflicted during the course of quarrel between them caused his d eath. However, for such killing the accused could not have been convicted u/s 30 2 IPC. The accused could have at best be convicted, according to the learned cou nsel for the accused-appellant, for offence u/s 304 Pt. II IPC. 10. Since the learned trial court convicted the accused u/s 302 IPC, despite
Legal Reasoning
the case in hand being a case u/s 304 Part II IPC, the learned trial court comm itted gross illegality and as such, same needs to be modified in the terms of ev idence on record by altering the conviction u/s 302 IPC to a conviction u/s 304 Pt. II IPC. 11. In support of his contention, learned counsel for the appellant has plac ed reliance on the decision of Hon’ble Supreme Court in the case of Sarup Singh Vs. State of Haryana reported in 1995 Crl. LJ 4168, K. Ramakrishnan Unnithan Vs. State of Kerala, reported in AIR 1999 SC 1428(1) and in the case of Muthu Vs. S tate reported in AIR 2008 SC 1. 12. Responding to such an argument from the side of learned counsel for the appellant, learned Addl. Public Prosecutor, Ms Jahan, has submitted that there i s enormous but convincing evidence on record to show that on the fateful day, ac cused killed the deceased at the place of occurrence and he did so with the inte ntion of killing him. According to her, the materials on record reveals that he attacked, injured and killed the deceased without there being any sudden and gra ve provocation from the side of the deceased nor did he kill the deceased in a h eat of moment upon a sudden fight without acting in a cruel manner. 13. Rather, the materials, available on record, very forcefully demonstrate that accused intentionally killed the deceased and as such, he has been rightly convicted by the learned trial court of offence u/s 302 IPC. She, therefore, urg ed this Court not to interfere with the judgment of the trial court and submits this Court to dismiss the appeal on affirming the judgment under challenge in th is appeal. 14. We have carefully considered the rival submissions advanced by the learn ed counsel for the parties having regard to the judgment under challenge as well as the evidence on record. However, before we proceed further, we find it neces sary to have a brief review of evidence on record and the evidence of the doctor is first taken up for consideration. The doctor who conducted autopsy on the dead body of one Amol Dey was Dr 15. . A.J. Patowary who was examined as PW 3. According to him on 6.6.2003, he exami ned the cadaver of one Amal Dey at Gauhati Medical College Hospital and found th e following:- Stab wound of size 2.5 cm X 1 cm in front of chest, 10 cm to left of mid 1. line and 29 cm below the tip of acromion with irregular margin and contusion in the margin. The wound has extended up to the right ventricular gervix. 2. index finger. Contusion of size 1.5 cm X 0.5 cm in dorsum of middle plananx of right Spinal cord was not examined. Smell intestine : Healthy, contained digested food without specific smell. Large intestine : Healthy, contain fecal Pericardium : Perforated, size 1 cm X0.7 cm, the cavity contained 250 ml of blood. matter and gas. Heart : Penetration wound, perforation of the anterior wall of right vertical near the apex, size 0.8 cm X 0.5 cm, chambers empty. Death was due syncope as a result of cardiac limponade caused by stab wound of the heart. All the injuries described were ante-mortem. Injury No. 1 was caused by pointed weapon and homicidal in nature. Injury No. 2 was caused by blunt object. (cid:29) 16. So situated, let us consider the testimony of those witnesses who claim to have been present at the place of occurrence during the course of the inciden t aforesaid. They are PW1, PW2, PW 4, PW 5, PW 7, PW8 and PW 14. Sri Nripen Gaya ri (PW 7) deposes that the accused is a person who is associated with gambling. On the fateful day, he along with the deceased and one Bishnu Upadhyay were play ing cards behind the shop of one Shankar. In course of the game, the accused sco lded the deceased referring to his mother in an indecent manner. 17. The deceased took exception to it and demanded not to utter any defamato ry words against his mother. This triggered a quarrel between the accused and de ceased which immediately turned into a mutual fight. The people present there, t herefore, tried to separate the quarreling boys. In spite of above, they kept on exchanging blows. However, they could not bring an end to the quarrel. In the meantime, the accused rushed to the shop of 18. Shankar, took a bottle of cold drink there-from, broke it into pieces and then t aking such broken bottle, he rushed towards the deceased. The deceased too respo nded such overtures from the accused persons by rushing towards the accused pers on. Both of them immediately involved in a duel for which both of them fell down on the ground. 19. Meanwhile, people gathered at such place and separated the fighting boys but the PW 7 saw a good deal of blood coming out from the body of the deceased. He was immediately taken to hospital. Later on, he came to know that the deceas ed succumbed to the injuries in the hospital. In cross-examination, he has state d that during the course of quarrel both the boys exchanged blows. 20. PW 14, Sri Bishnu Upadhyay, deposes that on the fateful day, in the afte rnoon, he along with PW 7, was playing cards at the place of occurrence when the y were playing cards inside the shop of the deceased, the accused scolded the de ceased and also his mother in a very indecent way. The deceased advised him not to utter any word in an indecent way against his mother. In spite of such reques t, the accused kept scolding the deceased referring to his mother in an inapprop riate manner. For making inappropriate comment on his mother, the accused and the dece 21. ased started fighting with one another. While the quarrel was in progress, the b rother of the deceased also arrived at such place for which the PW 14 proceeded to a place little away from the place of occurrence. In the meantime, he heard a violent sound coming from the place where the boys were fighting for which he r an back to the place of occurrence and saw the deceased sustaining bleeding woun ds on his chest. 22. He also saw the deceased taking something out of his chest and threw it away to some distance. He, of course, could not say what that thing was. The afo resaid material hit the deceased on his chest. Later on, he came to know that th e deceased met his death due to such wound, he sustained at the place of occurre nce on the eventful afternoon. 23. PW 2 Sri Manik Talukdar is a shopkeeper. According to him, on the fatefu l day, he came to the P.O. at about 2.30 pm. As he alighted from the vehicle at the place of occurrence, he saw the accused hitting Amar with a broken bottle of cold drink which pierced into his chest which caused him to bleed profusely. Ne arby people assembled there and took the deceased immediately to hospital but la ter he came to know that Samar succumbed to his injuries in hospital. In his cro ss examination, PW 2 deposes that his sister was married to Shankar, the brother of the deceased. 24. PW 1, Sri Shankar Dey, is a shopkeeper and the brother of the deceased. According to him, on the fateful day, at noon, he came home after closing his sh op which is situated at the P.O. His house is situated at a distance of 200 mete rs from the place of occurrence. When he was still in his house, he heard that t here was a quarrel going on between the accused and the deceased at the P.O. He immediately rushed to such place. 25. His father also followed him. As he arrived at the place of occurrence, he saw a fight going on between his brother and the accused Madan. On arriving a t the place of occurrence, he found a good gathering there. He separated the qua rrelling boys. However, moments later, the accused again came to such place with a broken bottle of cold drink in his hand and attacked his brother with that br oken bottle and thrust it on his chest. 26. Though he tried to prevent him from doing so, he could not. Being so hit , his brother fell down on the ground smeared with blood. He was immediately tak en to the hospital but he succumbed to the injuries soon after his arrival at Ga uhati Medical College and Hospital. In regard to the aforesaid incident, he lodg ed an Ejahar which he proved as Ext. 1. Police conducted inquest on the body of the deceased which he proved as Ext. 2. 27. PW 4, Sri Manindra Kumar Dey, a shopkeeper, deposes that on the fateful day, while he was taking food in his house, he heard that a quarrel is going on between his son Amar and the accused person and such quarrel was going on at a p lace where their shop is situated. He immediately came to such place. His son Sh ankar too left for such place little before. As he arrived at the place of occurrence, he found the accused and decea 28. sed there. Suddenly he saw accused Madan took a bottle of cold drink from the sh op of Shankar, broke it on the road and rushed with it towards the shop of his s on Shankar. He also saw the accused hitting his son Amar on his chest with the broken bottle for which Amar fell down on the ground smeared with blood. Having seen it, he felt dizzy and slipped into swoon. Later on, he came 29. to know that his son died at Gauhati Medical College Hospital where he was taken for treatment. In his cross examination, he admitted that he witnessed a quarre l between the accused and deceased and as such, he made no attempt to pacify the boys. 30. PW 5, Sri Shankar Mallick, is also a shopkeeper. According to him, on th e fateful day, at about 2.30 pm, the alleged incident occurred at Panikhaiti Cha riali. At that time, he arrived at the place of occurrence after closing his sho p. As he alighted from the vehicle, he saw a quarrel between the accused and the deceased. He also saw such a quarrel being intervened by brother of the decease d. 31. But little thereafter the accused took a bottle of cold drink from the s hop of the deceased, broke it on the road and then hit the deceased on his chest with a piece of broken bottle. He was immediately taken to the hospital where h e succumbed to the injuries later. In his cross examination, he has admitted tha t as he arrived at the place of occurrence, he saw a fight going on between the accused and the deceased in which both of them exchanged blows. 32. PW 8, Parikhat Dey, is a carpenter. He is found saying that he has a sho p at Panikhaiti Chariali. According to him, on the fateful day, there was a hue and cry in Panikhaiti Chariali. He immediately rushed there and saw accused comi ng out of the shop of Shankar with a bottle of cold drinks which he broke on the road and thereafter he got involved in a quarrel with the deceased. 33. In that quarrel, both exchanged blows for which both of them fell down o n the ground, started rolling thereon and in that process, the deceased got inju red on his chest. He was immediately taken to hospital but succumbed to the inju ries later. In his cross examination, he has stated that both the accused and th e deceased got involved in a fight for which both of them fell down on the groun d. 34. PW 6, Madan Dey, a student, deposes that he came to the place of occurre nce soon after the alleged incident and found his uncle lying on the ground in a pool of blood. PW 7, PW 9 and PW 11 are daily wage earners. According to them, on the fateful day, police seized some broken pieces of bottles from the place o f occurrence on the strength of seizure list, Ext. 7. PW 10, Tapan Kr. Dey, PW 1 2, Bikash Gana and PW 13, Sri Bhudhi Prasad, are shopkeepers. 35. They came to the place of occurrence after the incident was over but the y saw police seizing some mud with blood from the place of occurrence on the st rength of seizure list, Ext. 8. On the other hand, PW 17, Sri Pradip Kumar Dey, a businessman, witnessed the police seizing blood stained ganji and pant on the strength of seizure list, Ext. 3. Such seizure was made at the police station. P W 16, Smti Arunima Baruah is a Senior Scientific Officer, whereas PW 15 and PW 1 8 are the I.O.s of the case. 36. On a very careful perusal of the evidence of PWs, particularly, 1, 2, 3, 4 , 5, 7, 8 and 14, it would appear more clear that on the fateful day, the ac cused and deceased while playing cards got involved in a duel which soon turned There is also evidence to show that the quarrel got so violent since the accused made inappropriate reference to the mother of the dece ased which made the deceased angry. The evidence on record further reveals that such fight which became too fierce very soon caused both of them to exchange blo ws in rage. 37. heated up that both of them fell down on the ground one rolling over the other which shows the magnitude of ferocity of fight. The evidence of some of the witn esses, more particularly, PW 7, PW 8 and PW 14 further demonstrates that having seen the accused coming to him with a broken bottle, the deceased too rushed tow ards him purportedly to challenge him. On the other hand, PW 5 has stated that t he incident in question occurred in such a lightening speed that they did not fi nd any time to separate the quarrelling boys. 38. Such revelations which emerge from the testimonies of PWs, in ou r considered opinion, only serve to show that on the fateful day, the accused di d attack, injure and kill the deceased by piercing with a broken bottle of cold drink on his chest but then, the evidence on record again strongly suggests that the accused attacked and injured the deceased in a heat of passion upon sudden quarrel which temporarily deprived him of his power of self control. These spea k loud and clear that the case in hand is undoubtedly covered by Exception I of Section 300 IPC. 39. quarrel broke out between the parties, they were playing cards. Unfortunately, s ome purportedly obscene remark about the mother of the deceased had triggered th e incident in question which abruptly extinguished the life of a young boy. Thes e are again testimonies to the facts that the incident in question occurred all of a sudden without any premeditation whatsoever. There is one more testimony of the case, under consideration, being covered by Exception 1 to Section 300 IPC. We may note here that on the fateful day, till the That being the position, we are to hold that the offence in ques 40. tion is a culpable homicide not amounting to murder. But when one considers the act of accused hitting the deceased on his chest with a broken bottle, there ca nnot be any escape from the conclusion that the accused intended to cause the de ath of the deceased and as such, he is guilty of offence u/s 304 Part I IPC. 41. We have already found that the learned trial court had convicted the acc used of offence u/s 302 IPC. But we have already held that prosecution has prove d that accused had committed offence u/s 304 Part-I and not offence u/s 302 IPC. That being so, the conviction of the accused person u/s 302 IPC is found unsust ainable in law and consequently, same is liable to be set aside and quashed. 42. However, in view of our forgoing discussion, the accused stands convicte d u/s 304 Part I IPC and he is accordingly sentenced to suffer R.I. for 10 years and fine of Rs. 3,000/-, i/d R.I. for another 3 months for offence u/s 304 Part -I IPC. 43. et off against the sentence, imposed upon the accused person. 44. Consequently, the appeal is partly allowed and the judgment of the trial The period which the accused person has already spent in jail is to be s court stands modified to the extent indicated above. 45. Return the LCR.