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2007 DIGILAW 635 (GAU)

Mujibur Rahman v. State of Assam

2007-09-21

A.P.SUBBA

body2007
JUDGMENT A.P. Subba, J. 1. This appeal is directed against the Judgment and Order dated 10.5.2004, passed by the learned Sessions Judge, Morigaon, in Sessions case No. 45/2003, convicting the appellant under Section 304IPC and sentencing him to undergo rigorous imprisonment for 8 (eight) years and a fine of Rs. 1,000/- in default to undergo further rigorous imprisonment for 2 (two) months. 2. The prosecution case, in a nutshell, is as follows: On 28.2.2002, at about 2.00 p.m., the appellant and his wife trespassed into the fishing pond of the informant and started fishing with a fishing net. The deceased who was the mother of the informant on seeing the appellant and his wife fishing in the said pond came there to resist them. On such resistance being put up by the deceased a quarrel ensued in the course of which the appellant fetched an axe for his nearby residence and delivered a blow with his axe on the head of the deceased causing a grievous injury. On an ejahar being lodged by the informant Laharighat P.S. Case No. 27./2002 under Section447/326 IPC was registered and investigation was taken up. The appellant who had fled away after assaulting the deceased with the axe was captured by VDP persons and handed over to the police. The deceased who was immediately removed to Laharighat PHC for medical care and attention was forwarded to Morigaon Civil Hospital from where she was referred to Gauhati Medical College Hospital. However, because of lack of proper resources to carry on the medical treatment of the deceased at Gauhati Medical College Hospital the deceased was brought back to Laharighat PHC where she succumbed to her injuries on the same day. On completion of the investigation the Police submitted charge sheet under Section 447/302/301IPC against the appellant. The wife of the appellant having absconded the appellant alone faced the trial. The plea of the appellant at the trial was one of denial. To bring home the charge against the appellant the prosecution examined 9 witnesses in all out of which two of them turned hospital. On completion of the trial the learned Sessions Judge found the appellant guilty under Section 304 FPC and passed the sentence as already noted above. 3. Mr. D.C. Borah the learned Counsel for the appellant and Mr. B.S. Sinha, learned Public Prosecutor for the State of Assam were heard. 4. On completion of the trial the learned Sessions Judge found the appellant guilty under Section 304 FPC and passed the sentence as already noted above. 3. Mr. D.C. Borah the learned Counsel for the appellant and Mr. B.S. Sinha, learned Public Prosecutor for the State of Assam were heard. 4. Without questioning the finding arrived by the learned Sessions Judge that the appellant was responsible in causing the grievous hurt on the head of the deceased with the axe blow the learned Counsel for the appellant contended that the offence committed by the appellant was one punishable under Section 325 of the IPC and not under Section 304 of the IPC as held by the learned trial Court. It was his submission that the appellant committed the offence without any intention to cause the death of the deceased nor had he the knowledge that the injury he inflicted was likely to cause the death of the deceased. The learned Public Prosecution did not strongly counter the above submission of the learned Counsel for the appellant. It was very fairly conceded by him that keeping in view the weapon with which the appellant was armed and the nature of the injury caused by him it would be unreasonable to come to any conclusion that the appellant had any intention to cause death or that he had the knowledge that by his act he was likely to cause death. 5. Having regard to the above respective contentions raised by the parties the limited question that falls for consideration of this Court is whether the case of the appellant falls under Section 304 IPC as held by the learned trial court or it falls under Section 325 IPC as contended by the learned Counsel for the appellant. The pertinent question that arises in this regard is whether the injury inflicted by the appellant can be categorized as one which is sufficient in the ordinary course of nature to cause death. The medical evidence that has been brought on record is inconclusive in this regard. 6. Dr. Nurul Amin, PW-8, who examined the injuries on the body of the deceased found the following injuries. One longitudinal cut, sharp in nature in mid parietal region extending from frontal bone to occipital region. Outer table involved, active bleeding present. 7. The medical evidence that has been brought on record is inconclusive in this regard. 6. Dr. Nurul Amin, PW-8, who examined the injuries on the body of the deceased found the following injuries. One longitudinal cut, sharp in nature in mid parietal region extending from frontal bone to occipital region. Outer table involved, active bleeding present. 7. Except the above, the report does not contain any mention regarding size of the injury viz length, breadth, depth etc. All that is noted under the Inference head is 'Grievous injury caused by sharp weapon'. 8. Based on the above medical evidence, it is, indeed, difficult to come to any conclusion as to whether the injury which is found to be grievous in nature was sufficient in the ordinary course of nature to cause death or whether the injury was so imminently dangerous that it must, in all probability, cause death. Such being the position it would not be possible to come to any conclusion that the injury was caused with any intention to cause death or with the knowledge that the act done was likely to cause death. As already noted above, the learned Public Prosecutor conceded and correctly, that in the present circumstances the injury caused cannot be categorised as an injury which was sufficient in the ordinary course of nature to cause death or that it was so imminently dangerous to the knowledge of the appellant to cause death. 9. Indeed, the dividing line between culpable homicide not amounting to murder and grievous hurt as held by the Orissa High Court in the case of Dina @ Dinabandhu Banchhor v. State of Orissa reported in 1996 Crl. L.J. 2398 (Orissa), is a very thin line. As per the observation made by the Court if the act is such as is likely to cause death it would amount to culpable homicide not amounting to murder and if the injury is such as endangers life it would be grievous hurt. The following is what has been further observed by the learned Court: As injury can be said to endanger life if it is in itself such that it may put the life of the injured in danger. The following is what has been further observed by the learned Court: As injury can be said to endanger life if it is in itself such that it may put the life of the injured in danger. Where there is no intention to cause death or no knowledge that death is likely to be caused from the harm inflicted and death is caused, the accused would be guilty of grievous hurt if the injury was of a serious nature, but not of culpable homicide. The above test may be applied to the present case with advantage. As already noted above, the injury inflicted by the appellant is no doubt a serious one and capable of putting life of the injured in danger. The very fact that death ensued supports this conclusion. However, as already noted above, the appellant cannot be attributed with intention or knowledge in the facts and circumstances of the case. 10. In Kula Borah v. State of Assam reported in 2005 (2) GLT 139, a case relied on by the learned Counsel for the appellant, a learned Bench of this Court altered conviction of the appellant under Section 304 IPC to one under Section 325 IPC duly modifying the sentence. The facts of the case were that while the deceased was sitting and gossiping with PW-1 and few others the accused arrived there with an umbrella in his hand and thrust blunt side of the umbrella stick into the lower abdomen of the deceased. Though the deceased was given medical treatment in the Local Primary Health Centre she succumbed to her injuries on the way to Assam Medical College Hospital where she was referred by the Local Primary Health Centre. In the facts and circumstances of the case it was held that the act of the accused does not constitute an offence of culpable homicide not amounting to murder under Section 304 IPC. Even though the facts of this case are not quite identical in so far as the weapons of offence were different the ratio of the case as very fairly conceded to by the learned Public Prosecutor squarely applies to the present case. It must be conceded that the axe used by the appellant in the present case was more dangerous than the umbrella stick in the case cited above. It must be conceded that the axe used by the appellant in the present case was more dangerous than the umbrella stick in the case cited above. However, the evidence on record does not show that the sharper edge of the axe was used. According to the opinion given by Dr. Arup Borah, PW-9 who performed post mortem examination on the dead body of the deceased the death occurred due to intracranial haemorrhage which occurred after a few days of receiving the injuries in the head. According to the submission made by the learned Public Prosecutor in this regard with the kind of weapon namely the axe with which the appellant was armed, he would have caused the death of the deceased on the spot using the axe from its sharper edge if he had intended to put the deceased to death and the fact that he only delivered a blow causing grievous injury goes to show that he had no intention to cause death nor can he be attributed knowledge that his act was likely to cause death. Having regard to the facts established by evidence on record I find considerable force in the reasoning put forward by the learned Public Prosecutor in support of his submission. Hence, in the facts and circumstances of the case I find it legitimate to come to the conclusion that the appellant had no intention to cause the death of the deceased nor did he have the knowledge that by his act he was likely to cause death. I would accordingly, hold that the act of the appellant in the present case does not constitute an offence of culpable homicide not amounting to murder punishable under Section304 IPC. 11. Accordingly, the conviction of the appellant under Section 304 IPC is modified and altered to one of grievous hurt punishable under Section 325 EPC. Coming to sentence note must be taken of the fact that the axe used by the appellant is a dangerous weapon which if used as a weapon of offence is likely to cause death. Having regard to this fact 1 am of the view that the appellant does not deserve much leniency in the matter of sentence. Thus, I am of the further view that a rigorous sentence for a term of five years if imposed will meet the ends of justice in the circumstances of the case. Having regard to this fact 1 am of the view that the appellant does not deserve much leniency in the matter of sentence. Thus, I am of the further view that a rigorous sentence for a term of five years if imposed will meet the ends of justice in the circumstances of the case. Accordingly, the appellant is sentenced to undergo rigorous imprisonment for five years maintaining the sentence with regard to fine. 12. The impugned conviction and sentence stands modified to the extent indicated above. With the above modification this Criminal Appeal stands disposed of.