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2010 DIGILAW 79 (GAU)

Robijuddin v. State of Assam

2010-02-04

AMITAVA ROY, C.R.SARMA

body2010
JUDGMENT Amitava Roy, J. 1. The judgment dated 4.6.2004 passed by the learned Sessions Judge, Cachar, Silchar in Sessions Case No. 84/03 thereby convicting the accused/appellant under Section 302 of the IPC ('Code') sentencing him to undergo R.I. for life and to pay fine of Rs. 200, in default, to suffer R.I. for a further period of 10 days is the subject matter of this appeal from jail. 2. We have heard Mr. U. Das, learned amicus curiae for accused/appellant and Mr. Z. Kamar, learned Public Prosecutor for the State of Assam. 3. The genesis of the trial of the accused/appellant along with his wife Musstt. Rongila Begum is traceable to the FIR lodged on 2.10.2001 by Md. Abu Bakkar All with the Officer in-charge, Sonai Police Out Post, under Sonai Police Station alleging that on that day, i.e., on 2.10.2001 at about 10 a.m. following an altercation between the deceased, Sonahar Ali, and Musstt. Rongila Begum over a duckling, the accused/appellant on being instigated by his wife above named assaulted his father (deceased) with a dao/dagger and killed him. On the basis of the aforesaid FIR eventually Sonai Police Station Case No. 307/01 under Section 447/302/114/34, IPC was registered and investigation was conducted by the police. Charge sheet was submitted against both the said accused persons and the case being committed to the Court of Sessions, the trial court framed charges against the accused persons under Section 302 of the Code. They denied the charge and claimed trial. The prosecution examined nine witnesses including the Doctor as well as the Investigating Officer. The statements of the accused persons were recorded under Section 313 of the Code, whereupon the impugned judgment and order was passed. 4. The learned amicus curiae has assertively argued that the accused/appellant had been sufficiently provoked for which he inflicted a single blow on the deceased, as a result of which his father died on the spot. As he by no means could have at that point of time the intention of killing his father his conviction for murder is unsustainable in law he urged. According to the learned Counsel, had the accused/appellant any intention of murdering his father, he could have inflicted further assaults. The learned Counsel has argued that in the instant case a single blow with a dao/dagger by the accused/appellant does not establish his intention of murdering the deceased. According to the learned Counsel, had the accused/appellant any intention of murdering his father, he could have inflicted further assaults. The learned Counsel has argued that in the instant case a single blow with a dao/dagger by the accused/appellant does not establish his intention of murdering the deceased. The learned Amicus Curiae, in support of his arguments has placed reliance on the decision of this Court reported in Neherul Ali v. State of Assam 2001 (1) GLT 208. 5. Mr. Kamar on the other hand, argued that the evidence of eye witnesses, i.e., PW1, PW2, and PW6, in particular has proved the culpability of the accused/appellant and, therefore, his conviction and sentence is valid in law. According to him, the evidence on record does not demonstrate any uncontrollable provocation justifying the barbaric act of the accused/appellant, more particularly, as the victim was his father. He relied on the decision of the Apex Court reported in Manubhai Atabhai v. State of Gujarat (2007) 10 SCC 358 . 6. To properly appreciate the rival submission, the evidence of record needs to be surveyed. PW1, Mst. Poinab Bibi, the wife of the deceased has stated that on the date of occurrence at about 9 a.m. in the morning her grand daughter, Romola Begum while playing with a piece of 'murtha' in their courtyard caused injury to one of the ducklings of the accused persons. On this the accused Rongila Begum threatened that proper action would be taken on the return of the accused/appellant, who was at that point of time not at home. On his return, according to the witness, Rongila Begum exaggerated the incident which was followed by an animated quarrel between the accused/appellant and the deceased, whereupon the accused/appellant brought out a dao/dagger from his room and assaulted his father and killed him at the spot. 7. PW2, Mst. Romola Begum is the grand daughter of the PW1. The trial court before recording her evidence made an assessment of her maturity and intelligence to provide rational answers to the questions to be put in course of her evidence. This witness after being administered oath deposed and admitted of having caused injury to one of the ducklings of the accused/appellant while playing with a 'murtha'. The trial court before recording her evidence made an assessment of her maturity and intelligence to provide rational answers to the questions to be put in course of her evidence. This witness after being administered oath deposed and admitted of having caused injury to one of the ducklings of the accused/appellant while playing with a 'murtha'. She also stated that the said incident spurred a quarrel in the family and, eventually after her uncle (accused/appellant) had returned home, he on being provoked by his wife Rongila, abused her grand father. Her uncle later became furious and assaulted her grand father on his neck with a dao, as a consequence of which he died on the spot. 8. PW.3, Abu Bakkar is the informant, but not an eye witness of the incident. He proved the FIR, Ext.1 with his signature thereon. PW4 Arfan Ali is also a neighbor, but not an eye witness. PW5, Sirajun Nessa and PW6, Silima Begum are the sisters-in-law of the accused/appellant, who stated identically as PWs 1 and 2 vis--vis the incident. PW8, Dr. Gunajit Das had conducted the post mortem examination and proved the injuries as follows: 1. Slicing of the pulp space of the little finger of left hand. 2. Stab injury over the left side of the root of the neck 1 cm above medially and left clavicle 4x1 cm with the dept up to the thorasic cavity. Margins found clean cut. Liquid blood was seen coming out through the wound. The doctor opined that the death, occurred due to haemorrhage and shock from the stab injuries sustained which were ante-mortem and homicidal in nature. He also proved the post mortem report. This witness was not cross-examined by the defence. PW7 and PW9 are the investigating officers. PW9 in course of his testimony amongst others proved the sketch map Ext.4. In course of their statements under Section 313, Cr.PC both the accused persons denied the incriminating circumstances. 9. By the impugned judgment and order the accused Rongila Begum was acquitted on the ground that she had only taken part in the quarrel but did not participate in the assault. In course of their statements under Section 313, Cr.PC both the accused persons denied the incriminating circumstances. 9. By the impugned judgment and order the accused Rongila Begum was acquitted on the ground that she had only taken part in the quarrel but did not participate in the assault. The analysis of the testimony of the prosecution witnesses in particular PWs 1, 2, 5 and 6, in our view, it is proves beyond doubt that the accused/appellant was the assailant and that the stab injury caused by him on the person of the deceased was fatal. The materials on record, however, also prove that the eventual act of assault was preceded by a quarrel over a duckling belonging to the accused/appellant and his wife Rongila Begum in course of which latter threatened of proper action against her father-in-law as he had intervened in support of grand daughter, Romola Begum. Their evidence substantiate that on the return of the accused/appellant to the house, Rongila Begum reported to him the incident blowing it out of proportion and instigated him to do the needful. That a quarrel between the accused/appellant and his father ensued thereafter following which he took out a dagger and assaulted the deceased, as a result of which he died is also proved by the evidence of the eye witnesses. 10. The evidence of the Doctor, PW8, indicates stab injury over the left side of the root of the neck of the deceased. Slicing of the pulp space of the little finger of left hand was also detected. According to the Doctor, as referred to hereinabove, death occurred due to stab injury sustained by the deceased. The evidence of the Doctor proves that the stab injury on the left side of the neck was fatal and was the cause of the death. Noticeably the accused/appellant was sufficiently enraged following the instigation of his wife Rongila Begum and after quarrel that had started between him and the deceased, he inflicted one blow with a dagger on the person of the deceased. 11. In the instant case, we are inclined to hold in the background of the incident, that at the relevant time the accused/appellant was sufficiently provoked so as to deprive him of his power of self-control and that he had no intention of murdering his father, though he was fully aware of the serious consequences of his deplorable act. 12. 11. In the instant case, we are inclined to hold in the background of the incident, that at the relevant time the accused/appellant was sufficiently provoked so as to deprive him of his power of self-control and that he had no intention of murdering his father, though he was fully aware of the serious consequences of his deplorable act. 12. On an over all consideration of the facts and circumstances of the case, we are, thus, of the unhesitant opinion that the offence committed by the accused/appellant ought to be scaled down under Section 304(1), IPC. Ordered accordingly. 13. In considering the sentence that would be proper, we have taken note of the views expressed in Manubhai Atabhai (supra) and Neherul All (supra). We are of the opinion that it would meet the ends of justice if the sentence of life imprisonment is reduced to one for a period of 7(seven) years. The sentence of payment of fine is maintained. Needless to say, the period already served by the accused/appellant would be set off against the sentence awarded in this appeal. 14. In the result, the appeal is partly allowed. 15. We assess the remuneration for the assistance rendered by the learned amicus curiae at Rs. 3,500 to be disbursed forthwith by the State. 16. A copy of this judgment and order be furnished to the learned amicus curiae. Appeal allowed