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2015 DIGILAW 1046 (GAU)

Rafique Ali @ babu v. State of Assam

2015-08-18

P.K.SAIKIA, RUMI KUMARI PHUKAN

body2015
JUDGMENT : P.K.Saikia, J. This appeal is directed against the judgment and order dated 16.07.2012, passed by the learned Sessions Judge in Sessions Case No. 92(S-S)/2008 convicting the appellant, Rafique Ali @ Babu of offence u/s 302 IPC and sentencing him to undergo imprisonment for life with a fine of Rs. 50,000/- (Rupees fifty thousand) i.d. R I for another 6 (six) months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellant (herein after referred to as the accused person) has preferred this appeal from jail citing several infirmities in the judgment under challenge. 3. We have heard Mr. S. Borgohain, learned counsel for the appellant and also heard Mr. K.A. Mazumdar, learned Addl. PP, appearing for the State respondent. 4. The facts necessary for disposal of the present proceeding, in short, are that on 26.11.2006 at about 6.30 pm, Md. Sarujan Ali (since deceased herein after referred to as the victim), came to the house of his brother, namely Rafique Ali and assaulted his wife and daughter. Seeing his daughter and wife being assaulted by the victim, the accused person herein had driven his brother out of his house. 5. However, the victim returned back to the house of the accused person little later and tried to attack the accused person. Such incident enraged the accused person for which he attacked the victim with a Naga dao inflicting injuries on his person for which he died at the place of occurrence itself instantaneously. 6. An FIR to that effect on being lodged with O/C, Halowating Police Station on 26.11.2006, police registered a case vide Halowating PS Case No. 64/2006 and ordered investigation. The Officer who was entrusted with the investigation of the case was one Sri Jiban Ch. Kalita (PW 15). 7. On being so entrusted with the investigation of the case, Sri Kalita, visited the PO, conducted inquest on the dead body, sent the same to hospital for post mortem examination, examined the witnesses, arrested the accused person and did other things needful and on the conclusion of investigation, he submitted charge sheet u/s 302 IPC against the accused person and forwarded him to the Court to stand his trial for the offence aforesaid. 8. 8. The learned Magistrate before whom charge was so laid committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. On receipt of the case on commitment, learned Sessions Judge, on hearing the learned counsel for the parties, was pleased to frame charge u/s 302 IPC and charge, so framed, on being read over and explained to the accused, he pleaded not guilty and claimed to the tried. 9. During trial the prosecution has examined as many as 15 (fifteen) witnesses including the informant, the IO and the MO. The statement of accused person u/s 313 CrPC was also recorded. He pleaded guilty. He, however, did not adduce any evidence. 10. On conclusion of trial and on hearing the learned counsel for the parties, learned Sessions Judge was pleased to convict the accused person u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 11. Mr. S. Borgohain, learned counsel for the appellant, submits that the evidence on record reveals that on the fateful evening, the accused had killed his own brother in his house but referring to the evidence, rendered by various PWs, it has been contended that the accused had to kill his own brother in exercise of right of private defence. Such proposition is found well evident from the evidence on record and other materials including statement of the accused person recorded u/s 313 CrPC. 12. Being so, in view of the materials on record, learned trial Court was not justified in convicting the accused of offence u/s 302 IPC. Rather, he ought to have been convicted of offence u/s 304-II IPC. He, therefore, urges this court to alter the conviction of the accused person from a conviction u/s 302 IPC to a conviction u/s 304-II IPC and sentenced him to punishment accordingly. 13. We have also heard Mr. K. A. Mazumdar, learned Addl. PP. Referring to the evidence of witnesses, more particularly, the evidence of PW 2, Musstt. Rajina Begum and PW 3, Miss Momina Begum, wife and daughter of the accused respectively, learned Addl. PP. submits that their evidence reveals that the accused had to attack, injured and killed the deceased under huge compulsion and as such, the submission, advanced by the learned counsel for the appellant, may be accepted. 14. Rajina Begum and PW 3, Miss Momina Begum, wife and daughter of the accused respectively, learned Addl. PP. submits that their evidence reveals that the accused had to attack, injured and killed the deceased under huge compulsion and as such, the submission, advanced by the learned counsel for the appellant, may be accepted. 14. We have considered the rival submissions having regard to the evidence on record as well as the judgment under challenge. On a careful perusal of evidence of witnesses, more particularly, the evidence of PW 2, Musstt. Regina Begum, PW 3, Miss Momina Begum, we have found that on the eventful evening, it is the deceased who came to the house of the accused person in a drunken condition armed with weapons. 15. Equally important, there is also evidence on record to show that after going to the house of the accused person, the deceased assaulted the family members of the accused person. What is worse, he even tried to strangulate the daughter of the accused person besides assaulting his wife. In such a situation, the accused had to attack him killing the victim in the house of the accused person. 16. Such materials further reveal that the accused had to attack the deceased in exercise of right of private defence to save his daughter and wife from the assault of the victim but then, in that process, he exceeded the limit fixed by law and killed his own brother. The medical evidence supports such a conclusion of us. Situation being such, in our opinion, it is a case of culpable homicide not amounting to murder and as such, the accused is liable to be convicted u/s 304-II of the IPC and not under section 302 IPC. 17. Being so, the judgment in question under which the accused stood convicted u/s 302 IPC is liable to be interfered with. Accordingly, conviction of the accused person stands altered from a conviction u/s 302 IPC to a conviction u/s 304-II IPC. 18. We have considered the entire material on record and found that a sentence of 5 (five) years imprisonment with a fine of Rs. 2,000 (Rupees two thousand) i.d., R I for another 3 (three) months for the aforesaid offence would meet the end of justice. 19. 18. We have considered the entire material on record and found that a sentence of 5 (five) years imprisonment with a fine of Rs. 2,000 (Rupees two thousand) i.d., R I for another 3 (three) months for the aforesaid offence would meet the end of justice. 19. In the result, the accused (the appellant herein), is sentenced to suffer R.I. for 5 (five) years with a fine of Rs. 2,000 (Rupees two thousand) i.d., R.I. for another 3 (three) months for the offence aforesaid. 20. The period which the accused has already spent in jail is to be set off from the period of sentence imposed on him by this Court. 21. The appeal is partly allowed as indicated above. 22. The Registry will issue a modified jail warrant as indicated above. 23. Return the LCR forthwith. 24. Since the deceased died in a peculiar situation on 26.11.2006 and he so died leaving behind his wife and minor children, we are of the opinion that in terms of Section 357A, some amounts needs to be paid to his legal heir(s) as compensation. 25. Accordingly, we direct the State of Assam to pay an amount to the tune of Rs. 50,000/- (Rupees fifty thousand) to the legal heir(s) of the deceased as being compensation. 26. The State of Assam is directed to pay such amount to the State Legal Services Authority (in short, the SLSA) within a period of 3 (three) months from the date of receipt of certified copy of this judgment. On the receipt of such amount, the SLSA shall place such amount at the disposal of the District Legal Services Authority, Sibsagar. 27. On the receipt of such amount by DLSA, Sibsagar, same would be disbursed to the legal heir(s) of the deceased on proper identification. 28. A copy of this order be furnished to the learned P.P. for doing needful as indicated above.