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2010 DIGILAW 480 (GAU)

Sushil Saikia v. State of Assam

2010-07-19

C.R.SARMA, RANJAN GOGOI

body2010
Ranjan Gogoi, J.:- 1. The accused, appellant who is in jail has been convicted under section 302, IPC by the judgment and order dated 17.12.2003 passed by the learned Sessions Judge, Dibmruarh in Sessions Case No. 167/2000. He has been sentenced to undergo R.I. for life and to pay a fine of Rs. 5,000, in default, to suffer R.I. for two years more. Aggrieved, this appeal has been filed. 2. The short case of the prosecution is that on 26.4.2000 at about 11.30 a.m. PW1, Mrinal Das lodged a FIR in the Duliajan Police Station stating that on the same day at about 8.30 a.m. one of the labourers engaged by him, namely, Sushil Saikia had killed one Sabha Kcot who was working in the house of the first informant for about four years. In the FIR filed, it was mentioned that the accused had hacked the deceased on the neck with an axe and, thereafter, had run away from the place of occurrence. 3. On receipt of the aforesaid FIR, Duliajan P.S. Case No. 46/2000 under section 302, IPC was registered. PW4, Surjya Neog, S.I, of Police was entrusted with the investigation of the case. In the course of the investigation police party visited the place of occurrence and prepared a sketch map thereof. Inquest was held on the dead body which was also sent for post mortem examination. The alleged weapon of assault i.e. an axe was seized by seizure list (Exhibit-3). Thereafter, on receipt of the post mortem report and on completion of the investigation, charge sheet was submitted against the accused/appellant under section 302, IPC. The offence alleged being exclusively triable by the Court of Sessions, the learned SDJM, Dibrugarh vide order dated 16.10.2000 committed the case for trial to the Court of Sessions at Dibrugarh. In the trial court charge under section 302, IPC was framed against the accused/appellant to which he pleaded not guilty and claimed to be tried. Seven witnesses in all were examined by the prosecution. The defence did not adduce any evidence. However, in the statement of the accused, appellant recorded under section 313, Cr.PC he denied any involvement in the offence alleged. Thereafter, at the conclusion of the trial the accused, appellant has been convicted and sentenced as aforesaid giving rise to the present appeal. 4. The defence did not adduce any evidence. However, in the statement of the accused, appellant recorded under section 313, Cr.PC he denied any involvement in the offence alleged. Thereafter, at the conclusion of the trial the accused, appellant has been convicted and sentenced as aforesaid giving rise to the present appeal. 4. PW1, Mrinal Das, the first informant, in his deposition had stated that on the date of occurrence the deceased had gone to cut firewood in the orchard owned by him. After about an hour and half one Lakheswar Mura (PW2) came and reported to PW1 that the accused, appellant had cut the deceased with an axe. On receipt of the said information PW1 went to his orchard and found the dead body of the deceased lying on the cross road of the village which is at a distance of about 200/300 metres from the orchard. According to PW1, he saw cut injuries on the neck of the deceased. Thereafter, PW1 along with Lakheswar Mura (PW2) and one Anup Keot (PW3) went to the Duliajan Police Station and lodged the FIR. PW1 had further deposed that along with the police party he had gone to the orchard and there they found the axe which was carried by the deceased while going to the orchard. According to PW1, the said axe was seized by the police vide seizure list-Exhibit-3. 5. PW2, Lakheswar Mura is an eye witness to the occurrence. He had deposed that at the relevant point of time he was cutting firewood at a place about 2 metres away from where the accused and the deceased were also working. PW2 has deposed that while the accused was cutting firewood the deceased was stacking up the same in piles. However, the piles of firewood that were being stacked by the deceased were continuously rolling down. Over the said issue there was an altercation between the accused and the deceased, in the course of which, there was exchange of hot words. Enraged, the accused/appellant hacked the deceased on the neck with the axe and, thereafter, ran away. PW2 has further deposed that he came and informed PW1 of the incident immediately thereafter. 6. Over the said issue there was an altercation between the accused and the deceased, in the course of which, there was exchange of hot words. Enraged, the accused/appellant hacked the deceased on the neck with the axe and, thereafter, ran away. PW2 has further deposed that he came and informed PW1 of the incident immediately thereafter. 6. The evidence of PW3 would not be very material as the said witness had come to know of the incident from other people, PW4, Surjya Neog is the Investigating Officer of the case who in addition to deposing with regard to the different stages of the investigation carried out by him had also deposed that the accused/appellant had surrendered in the police station and had confessed the crime. PW4 had further deposed that the accused had informed him that he had killed the deceased with an axe and that the said weapon was lying at the place of occurrence and that he could show the same. According to PW4, he along with the police party took the accused to the place of occurrence and on being pointed out he had seized the axe vide seizure list-Exhibit-3. 7. The evidence of PW5, again, would not be very material as this witness had denied any knowledge as to how the deceased had died. PW6, Promod Hazarika who is a resident of the same village had deposed that in the morning of the date of occurrence PW1, Mrinal Das came to his house and informed him that Sabha Keot, one of his day labourers, had been killed with an axe by the accused/appellant. According to PW5, on receipt of the said news he went to the place of occurrence and found the dead body of Sabha Keot lying on the crossroad. According to this witness, when police had gone to the place of occurrence accompanied by him they did not find any axe. However, later the police party had visited the place of occurrence along with the accused and he could learn that the police seized an axe from the said place which was produced by the accused/appellant. 8. PW7, Dr. R.K. Gogoi was working as Demonstrator of Forensic Medicine in the Assam Medical College & Hospital at the relevant point of time. However, later the police party had visited the place of occurrence along with the accused and he could learn that the police seized an axe from the said place which was produced by the accused/appellant. 8. PW7, Dr. R.K. Gogoi was working as Demonstrator of Forensic Medicine in the Assam Medical College & Hospital at the relevant point of time. On 27.4.2000, PW7 had conducted post mortem on the dead body of Sabha Keot and found the following injury: "(1) One obliquely placed incised wound, dissected downward and forward present on left side of the neck measuring 11 x 6 cms which incised the great vessel and body of the 3rd cervical vertebrae partially. Examination of cranium and spinal canal: Vertebrae - as described others healthy. Examination of thorax: All were healthy. Examination of abdomen: All were healthy." The opinion of PW7 as to the cause of death is as follows: "Cause of death is shock and haemorrhage, resulting from injury sustained which is ante mortem and caused by heavy sharp cutting weapon and homicidal in nature. Approximate time since death is 18-36 hours. Exht. 5 is the post mortem report and Ext. 5(1) is my signature." 9. An analysis of the evidence of the prosecution witnesses, the core of which have been noticed above, would go to show that there is a solitary eye witness to the occurrence, i.e., PW2 who in clear terms had deposed that in the course of an altercation that had developed between the accused and the deceased, at a certain point of time, the accused had given the deceased a blow on the neck with an axe. PW2, thereafter, informed the incident to PW1 who, in turn, had informed the same to PW6. Both PW1 and 6 found the dead body of the deceased lying in the village crossroad near the orchard belonging to PW1 where the accused and the deceased were cutting firewood. There is nothing in the evidence of PW2 which would enable a reasonable doubt to be cast with regard to the veracity of the statements made by the said witness. In fact, the deposition of PW2 is substantially corroborated by PW1 and also by PW6. We are, therefore, of the view that the evidence of the sole eye witness (PW2) had been rightly accepted by the learned trial court to determine the culpability of the accused-appellant. 10. In fact, the deposition of PW2 is substantially corroborated by PW1 and also by PW6. We are, therefore, of the view that the evidence of the sole eye witness (PW2) had been rightly accepted by the learned trial court to determine the culpability of the accused-appellant. 10. However, from the evidence of PW2 it transpires that on the date of occurrence while the accused was cutting firewood the deceased was stacking up the same. The stack of firewood made by the deceased was continuously rolling down which appears to have irritated the accused. Over the said issue there was an altercation, in the course of which, hot words were exchanged. At one point of time, enraged, the accused dealt a blow with the axe in his hand on the neck of the deceased, as a result of which, he died. The question that would fall for our consideration is whether on the said facts the conviction of the accused under section 302, IPC had been rightly made by the learned trial court. 11. Under the provisions of section 300, IPC culpable homicide will not amount to murder if it is committed without premeditation, in a sudden fight and in the heat of passion upon a sudden quarrel. However, the offender is not to take any undue advantage of the situation or act in a cruel or unusual manner. In the present case, there is no evidence of any previous enmity between the accused and the deceased. In fact, both were day labourers working together. There is also no evidence of any premeditation on the part of the accused to cause the death of the deceased. On the contrary, there is positive evidence to show that there was an altercation and exchange of hot words between the accused and the deceased and that at some point of time, being enraged, the accused had dealt an axe blow on the neck of the deceased. Regard must also be made to the fact that a single injury was caused to the deceased as evident from the medical evidence on record. Taking into account all the aforesaid proved facts, it is our considered view that the present case would be covered by the fourth exception to section 300, IPC and, therefore, the act committed by the accused, though culpable, would not amount to murder. Taking into account all the aforesaid proved facts, it is our considered view that the present case would be covered by the fourth exception to section 300, IPC and, therefore, the act committed by the accused, though culpable, would not amount to murder. The appropriate provision of the Indian Penal Code under which the accused should be held liable, in our considered view, would be section 304. Having regard to the weapon used and the part of the body of the deceased on which injuries were caused, we are of the view that it would be reasonable to attribute to the accused the requisite intention of causing such bodily injuries which the accused knew was likely to cause death. That use of an axe on a vital part of the human body is likely to cause death can be reasonably attributed to any person engaged in such act. 12. Having regard to the discussions that have preceded, we are of the view that the conviction of the accused-appellant should be altered to one under section 304, Part I from section 302 of the Indian Penal Code. Insofar as the sentence is concerned, we have noticed that the accused has been in jail from the date of the judgment passed by the learned trial court, i.e., 17.12.2003, i.e., for nearly 6 years 8 months. We are also informed by the learned Public Prosecutor that the accused-appellant had been in custody for a period of 6 months 13 days during the trial. In this manner, the accused has been in custody for over 7 years. It is, therefore, our considered view that the sentence imposed on the accused should be altered to the period of imprisonment already suffered by him. We, accordingly, modify the conviction of the accused and the sentence imposed as above. 13. It is, however, made clear that the sentence of fine imposed by the learned trial court is maintained by us. However, in default of payment of the fine imposed, it is directed that the accused-appellant will undergo further imprisonment for six months more. 14. The appeal, consequently, is partly allowed. The accused/appellant be set at liberty forthwith after payment of the fine imposed. 15. We acknowledge the assistance rendered by Mr. P. Mahanta, learned amicus curiae in the case and direct the State to pay to Mr. Mahanta two days' hearing fee at the rate of Rs. 14. The appeal, consequently, is partly allowed. The accused/appellant be set at liberty forthwith after payment of the fine imposed. 15. We acknowledge the assistance rendered by Mr. P. Mahanta, learned amicus curiae in the case and direct the State to pay to Mr. Mahanta two days' hearing fee at the rate of Rs. 2,500 per day.