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2015 DIGILAW 313 (GAU)

Hindu Badra v. State of Assam

2015-03-16

MICHAEL ZOTHANKHUMA, P.K.SAIKIA

body2015
Michael Zothankhuma J. 1. Heard Mr. R.M. Choudhury, learned amicus curiae for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam for the respondents. 2. This appeal is directed against the judgment and order dated 2.9.2014 passed by the learned Addl. Sessions Judge-2 (FTC), Tinsukia in Sessions Case No. 158(M)/2012 thereby convicting the appellant under section 302 IPC and sentencing him to suffer R.I. for life, in default, to pay a fine of Rs. 3,000. 3. The prosecution case in brief is that on 11.7.2009 at around 8 p.m. an altercation took place between the accused/appellant, Sri Hindu Badra and his younger brother, Sri Johan Badra. In course of the altercation, the accused/appellant Hindu Badra cut his younger brother Johan Badra with a 'dao', as a result of which, Johan Badra died at the place of occurrence. 4. Learned amicus curiae has submitted that the accused/appellant had been provoked and it was due to the said provocation that the incident had occurred. Accordingly, the main thrust of the argument of the learned amicus curiae was that the conviction of the accused/appellant should have been under section 304, IPC and not under section 302, IPC. 5. Ms. Jahan, learned Addl. Public Prosecutor has taken us to the evidence of PW1 and PW2 adduced in course of the trial. PW1, Agnes Bhadra, who is the brother of the accused/appellant and the deceased has stated in his evidence as follows: "On S/A I have filed this case. Ext. 1 is the ejahar that I lodged. Ext. 1(1) is my signature. The accused is my elder brother. The deceased was also my elder brother. At the time of occurrence I was in the kitchen. A quarrel took place between Bir Singh, Johan and Hindu. Hearing the 'hulla' (commotion), I came out. I saw Hindu cut Johan in the neck and head with a dao. After that, Hindu fled. I informed the police because Johan died in the meantime. I saw Hindu cut Johan. Police took away the dead body. Police seized a dao. Ext. 2 is the seizure list and Ext. 2(1) is my signature. *** Cross-Exam *** We are 7 brothers. At the time of the occurrence I and my elder sister were cooking food in the kitchen. Hearing the 'hulla' I came to the middle room. 'I here I found Johan lying. Hindu was there by the side of Johan. Ext. 2 is the seizure list and Ext. 2(1) is my signature. *** Cross-Exam *** We are 7 brothers. At the time of the occurrence I and my elder sister were cooking food in the kitchen. Hearing the 'hulla' I came to the middle room. 'I here I found Johan lying. Hindu was there by the side of Johan. Hindu had a dao in his hand. Because of that, I think, Hindu killed Johan, It is not true that Hindu did not kill Johan. I did know if at that time some other people were there other than Hindu and Johan. It is not true that I Hindu did not kill Johan. I do not know as to why I put my signature on Ext. 2. There was nothing written in Ext. 2 when I put my signature on it. It is not true that I did not witness the incident.” PW2, Bijnia Bhadra, who is the sister of both the deceased and the accused /appellant has stated in her evidence as under: "On S/A, Hindu is my brother. Deceased was also my brother. At the time of the occurrence, I and Agnes were in the kitchen. Then I heard a sound of falling. Then I came out and saw Johan fall and Hindu run away with a dao in his hand. I saw injury in the neck and face of Johan. Hindu cut Johan with a dao. Agnes informed the police. First, I had come outside. Then came Agnes. While going on a run Hindu dropped the dao. Police seized it. Cross exam I and Agnes were present at the time of the incident. I saw only Johan in lying condition. It is not true that I did not see Hindu run away taking the dao." We have also been taken to the answers given by the accused/appellant to Question Nos. 1 and 2 in course of his examination under section 313, Cr.P.C which is to the following effect: “Question 1: PW Agnes Bhadra has averted in evidence that a quarrel took place between Bir Singh and Johan. He has stated that you cut in the neck and head of Johan, that Johan died and you ran away. 1 and 2 in course of his examination under section 313, Cr.P.C which is to the following effect: “Question 1: PW Agnes Bhadra has averted in evidence that a quarrel took place between Bir Singh and Johan. He has stated that you cut in the neck and head of Johan, that Johan died and you ran away. PW Binjia Bhadra has adduced in evidence that she was in the kitchen along with Agnes; hearing a sound of falling something she came out and saw Hindu (sic) fall and Hindu run away taking the dao; that he threw the dao on the way. PW Giri Bhadra has adduced evidence that his elder sister informed him that you left the place after killing Johan. PW Umesh Prasad has averted in evidence that Agnes informed him that you cut Bir Singh. What do you have to say regarding the evidence? Answer: These are false evidence. Question 2: Do you have anything to say? Answer: At the time of the occurrence, Johan demanded money from me. When 1 refused to pay him, he came charging at me taking a dao and caused injury in my right hand and right leg with the dao. When he came again to cut me I snatched the dao and cut in his neck with it." 6. Learned Addl. Public Prosecutor submits that the evidence of PW1 d and PW2 clearly proves the act of killing the deceased by the accused/ appellant. The evidence is further fortified by the answer given by the accused/appellant to the second question in course of his examination under section 313, Cr.P.C. 7. The deposition of PW5, Dr. Gobinda Mahanta shows that in his opinion, e the cause of death was shock and haemorrhage as a result of the injuries sustained by the deceased. The injuries found by PW5 on the dead body are as follows: "Injuries: (1) Cut injury on right temporal region of head bisecting the ear at the middle (Right), involving scalp, skull, muscle bone tissue of size 5 cm x 3 cm. Cremid cavity contain blood. (2) Cut injury of size 4cm x 1cm x 1cm on right parietal region involving the scalp exposing the skull. (3) Cut injury at the base of mandible (right) of size 4cm x 1cm x 1cm involving skin subcutaneous tissues and bone. Cremid cavity contain blood. (2) Cut injury of size 4cm x 1cm x 1cm on right parietal region involving the scalp exposing the skull. (3) Cut injury at the base of mandible (right) of size 4cm x 1cm x 1cm involving skin subcutaneous tissues and bone. (4) Cut injury on the neck at the level of thyroid cartilage involving the great vessels of neck and exposing the trachea, lumen is exposed and contained blood." 8. We have considered the evidence and the arguments put forth by the learned counsel for the parties. The question of the accused/appellant having killed his younger brother is not in doubt, inasmuch as, the cross-examination of PW1 and PW2 pin-pointedly shows that the accused/appellant had cut his younger brother with a 'dao' on account of which his younger brother had died. The only question that has to be answered is whether there was any provocation on the part of the deceased so as to convict the accused/appellant under section 304, IPC and not under section 302, IPC. 9. Though the learned amicus curiae has tried to portray that the accused/ appellant had cut his brother due to provocation, no suggestion to that effect has been made by the defence counsel in the cross-examination of the PWs. The defence has also not led any evidence to support the view that the accused/appellant had caused the death of his brother due to provocation. 10. In the above view of the matter, we are not inclined to accept the submission of the learned amicus curiae that the accused/appellant had caused the death of his younger brother due to provocation. 11. On due consideration of the facts and circumstances of the case and the evidence adduced, we are of the considered opinion that the offence committed by the accused/appellant squarely falls under section 302, IPC. Accordingly, the judgment and order dated 2.9.2014 passed by the learned Addl. Sessions Judge-2 (FTC), Tinsukia in Sessions Case No. 158(M)/2012 is hereby upheld. 12. The appeal stands dismissed. 13. The learned amicus curiae shall be paid a remuneration of Rs. 7,000 for rendering valuable assistance to the court. A copy of this order be sent to the L.R. & Law Secretary, Government of Assam for taking necessary steps in this behalf. ...