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2016 DIGILAW 667 (GAU)

Dayal Gansu v. State of Assam

2016-07-22

AJIT SINGH, SUMAN SHYAM

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JUDGMENT : Ajit Singh, J. The sole appellant Dayal Gansu has been convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.3,000/- with default stipulation. 2. The victim of the incident was Cine Gansu, aged 35 years. He was also brother of the appellant. 3. According to the prosecution case, on 27.12.2012, the appellant was having meals in the house of Cine Gansu. At that time, their sister Anita Gansu (PW-5) was also present and Sani Etwa (PW-4), wife of Cine Gansu, was serving food to them. The appellant asked for more pieces of fried fish from Anita Gansu, which led to a quarrel between him and Cine Gansu. The appellant, then, suddenly, picked up a dao lying nearby in the house and dealt a blow on the neck of Cine Gansu. The blow proved to be fatal and Cine Gansu died on the spot. After the incident, the appellant returned to his house and slept. 4. Ejahar (Exhibit-1) was lodged by Suresh Purti (PW-1) on 28.12.2012 at the Police Station Digboi. He is also brother of the appellant and Cine Gansu. In the ejahar, he categorically mentioned the name of appellant as the assailant of Cine Gansu. 5. On 20.12.2012, the post mortem examination on the body of Cine Gansu was conducted by Dr. Sailen Roy (PW-7). The doctor found deep rooted incised wound on the neck, which was ante mortem in nature. In the post mortem examination report Exhibit 4, the doctor has opined that Cine Gansu died due to neck injury caused by sharp cutting weapon. 6. During the trial, the appellant denied his guilt and pleaded false implication. 7. The trial court, relying upon the evidence of eye witnesses Sani Etwa (PW-4) and Anita Gansu (PW-5) as well as the post mortem examination report Exhibit 4, convicted and sentenced the appellant as aforesaid. 8. As mentioned above, Sani Etwa (PW-4) is wife of Cine Gansu whereas Anita Gansu (PW-5) is sister of both appellant and deceased Cine Gansu. They were, therefore, naturally present in the house at the time of incident. These witnesses in their evidence have reiterated the prosecution case as narrated above. 8. As mentioned above, Sani Etwa (PW-4) is wife of Cine Gansu whereas Anita Gansu (PW-5) is sister of both appellant and deceased Cine Gansu. They were, therefore, naturally present in the house at the time of incident. These witnesses in their evidence have reiterated the prosecution case as narrated above. They have stood firm in their evidence that appellant on a sudden quarrel over a piece of fish dealt a blow with a dao on the neck of Cine Gansu due to which he died. We have examined the evidence of both these witnesses and we find no good reason to disbelieve them. 9. In view of the evidence of Sani Etwa (PW-4) and Anita Gansu (PW-5) the 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. 10. 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. 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. As seen above, while taking meals, suddenly, a quarrel took place between the appellant and Cine Gansu over a piece of fish. And during quarrel the appellant lost self-control and in the heat of passion dealt a blow on the neck of Cine Gansu with a dao. As seen above, while taking meals, suddenly, a quarrel took place between the appellant and Cine Gansu over a piece of fish. And during quarrel the appellant lost self-control and in the heat of passion dealt a blow on the neck of Cine Gansu with a dao. It is not the case of prosecution that appellant had brought dao along with him. The dao was lying in the house of Cine Gansu. The incident took place without any pre-meditation between the appellant and his brother Cine Gansu. 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. 11. 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. 12. With the above modification, the appeal is partly allowed.