Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 617 (GAU)

Rajesh Sahan v. State of Assam

2016-07-13

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT : Ajit Singh, J. Appellant Rajesh Sahan has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation for committing the murder of Jagat Kurmi. 2. According to the prosecution case, Jagat was an employee in Hokonguri Tea Estate. He also lived there along with his wife Faguni Kurmi (PW 1) and five children. And the appellant lived in the neighbourhood of Jagat. He too was an employee in the same Hokonguri Tea Estate. On the evening of 11.9.2011, at about 7.30 PM, Jagat was in his house along with Faguni and children. The children were reading and doing the work assigned to them by their school. At that point of time, the appellant was playing music loudly in his house. This disturbed the children of Jagat in their reading. Jagat therefore went to the house of appellant and objected to his playing loud music. But the appellant did not approve the objection and got so infuriated that he inflicted three blows to Jagat with a dao after chasing him. 3. Jagat was immediately carried in a vehicle first to a local Longsowal Garden Hospital and from there to Dibrugarh Medical College Hospital for treatment. But he died as soon as his treatment started. Ejahar (Exhibit 2) of the incident was lodged by Ananta Kumar Tanti (PW3), Welfare Officer of Hokonguri Tea Estate at Police Station Doomdooma, which was registered as First Information Report. 4. Dr. Nibediata Shyam (PW 6) conducted the post mortem on the dead body of Jagat. She found the following three injuries on the body :- “1. An incised wound of size 25cm x 3cm x bone deep with compound fracture of upper end of shaft of right humerus present over right upper arm, 4.5 cm below the shoulder tip and 10 cm above the elbow joint, directed obliquely from below upward and flapped out which was held by four numbers of surgical stitches. The margins of the wound were smooth, the upper angle was blunted and the lower angle was sharp. 2. A stab wound of size 3 cm x 0.5cm x peritoneum deep present over right side of abdomen, 4.5cm below the costal margin and 1.5 cm from midline. Underneath peritoneum was contused. 3. The margins of the wound were smooth, the upper angle was blunted and the lower angle was sharp. 2. A stab wound of size 3 cm x 0.5cm x peritoneum deep present over right side of abdomen, 4.5cm below the costal margin and 1.5 cm from midline. Underneath peritoneum was contused. 3. Incised wound of size 21cm x 2cm x muscle deep held by four numbers of surgical stitches present over left side of buttock, directed from below upward. The margins of the wound were smooth, the upper angle was blunted and the lower angle was sharp.” Dr. Nibediata Shyam opined that injuries were ante mortem and caused by pointed sharp cutting object. She also opined that cause of death of Jagat was hemorrhage and shock due to injuries caused particularly abovementioned Injury No.2. 5. The Trial Court relying upon the evidence of witnesses – Faguni Kurmi (PW 1), Sonsoli Kurmi (PW 4) and Hari Kurmi (PW 5) convicted and sentenced the appellant as aforesaid. The Trial Court also relied upon the post mortem examination report (Exhibit 4) of Jagat. 6. Faguni is widow of Jagat. She has categorically testified that appellant inflicted three blows on Jagat with a dao because Jagat had asked him not to play music loudly. Similar is the evidence of eye witnesses - Sonu Kurmi and Hari Kurmi. Both these witnesses have testified in one voice that appellant had chased and caused injuries to Jagat with a dao which resulted into his death. According to the evidence of Hari Kurmi, on his asking, Jagat even mentioned the name of appellant as a person, who had assaulted him. In the cross examination of these witnesses nothing has been brought out to discredit their evidence. Their evidence also stands substantially corroborated by the post mortem examination report (Exhibit 4) of Jagat. 7. In view of the evidence of Faguni, Sonu Kurmi and Hari Kurmi, learned counsel for the appellant has not assailed the prosecution story, which is well-founded and fully proved. We accordingly confirm the finding of the trial court that appellant alone was the perpetrator of the crime. The learned counsel for appellant has however argued that even accepting the prosecution version in totality, the offence against the appellant would not be under Section 302 of the Indian Penal Code but under Part I or Part II of Section 304 of the Indian Penal Code. The learned counsel for appellant has however argued that even accepting the prosecution version in totality, the offence against the appellant would not be under Section 302 of the Indian Penal Code but under Part I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. 8. In the case of Muthu vs. State AIR 2008 SC 1 , it has been held that when in the heat of the moment or in a fit of anger a person does an act without premeditation that person must also be punished but his punishment should be lesser than that of premeditated offences. The Supreme Court has observed that it is for this reason that Exceptions 1 and 4 have been inserted in Section 300 of the Indian Penal Code. Exception 4 to Section 300 of the Indian Penal Code clearly provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. 9. As already seen above, the appellant was a small employee in the Tea Estate. He was playing music loudly in his house. He was happy and enjoying life with his family. Jagat objected to his this conduct. The appellant did not approve the objection. He somehow lost his self-control and in the heat of passion caused three injuries to Jagat with a dao after chasing him. Dao is normally kept almost in every house for cutting bamboo. The incident admittedly took place on a sudden quarrel without any premeditation between the appellant and Jagat. Having regard to the facts of the case, we are of the considered view that the act committed by the appellant would fall under Section 304 Part I of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 10. Consequently, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him thereunder and instead convict him under Section 304 Part I of the Indian Penal Code and award a sentence of 10 years rigorous imprisonment. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. With the above modification, the appeal is partly allowed.