Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 704 (GAU)

Babul Deb v. State of Assam

2016-08-01

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER AJIT SINGH, J. The sole appellant Babul Deb has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2,000/- with default stipulation. 2. The victim of the incident was Brojendra Deb @ Krishna Deb, aged about 65 years. 3. According to the prosecution case, the appellant and his father Brojendra had shops adjoining to each other. The appellant and Brojendra sold fruit and vegetables from their respective shops. The appellant has been persuading Brojendra to sell his shop for material gains to which he did not agree. On 31.5.2013, around 8 PM a quarrel broke out between them over the same issue. And the appellant, in a fit of anger, caused injuries to Brojendra with a piece of fire wood and also with a small knife which was kept in the shop. Brojendra could not survive the injuries caused to him and died. The local residents caught the appellant. Mother Pranati Deb (PW-7) of appellant lodged the ejahar exhibit 3 at Patharkandi Police Station, District Karimganj. In the ejahar, she categorically named the appellant as the assailant of Brojendra. Tamrul Haque Laskar (PW-8), In-charge of Police Station rushed to the place of occurrence and prepared the inquest report. There, the public handed over the custody of appellant to him. Tamrul also seized the blood stained wood piece and one knife vide exhibit 2 in the presence of witnesses. 4. Dr. Lakir Hussain Laskar (PW-1) conducted the post mortem examination on the body of Brojendra. He found one incised wound over left parietal region of scalp and one penetrating wound on the right backside of neck. He also found one bruise over left side of the chest and one lacerated wound over right leg. The doctor in his post mortem examination report exhibit 1 opined that Brojendra died due to injuries caused to him which were ante mortem in nature. 5. During the trial the appellant abjured his guilt and pleaded false implication. 6. The Trial Court relying upon the evidence of prosecution witnesses, prompt First Information Report and post mortem examination report, convicted and sentenced the appellant as aforesaid. 7. Shambhu Das Chowdhury (PW 2) has testified that his shop is opposite to the shop of appellant. And on the date of incident, at about 8.30 PM he heard an alarm that the appellant killed his father. 7. Shambhu Das Chowdhury (PW 2) has testified that his shop is opposite to the shop of appellant. And on the date of incident, at about 8.30 PM he heard an alarm that the appellant killed his father. According to his evidence, a large number of persons gathered in front of the shop of appellant and found that he was inside the shop. Shambhu Das has testified that in the focus of torch he saw Brojendra lying on the ground in a pool of blood and people tried to assault the appellant. Similar is the evidence of Muktar Hussain (PW-3). This witness has testified that police had seized one piece of wood and one knife vide exhibit 2. The evidence of other prosecution witnesses including that of mother Pronoti Deb (PW-7) is also in the same line. The appellant was alone in the shop with his father Brojendra. He has not given any explanation how Brojendra suffered the fatal injuries. 8. In view of the evidence of prosecution witnesses, 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. We find sufficient force in this submission. 9. 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. 10. 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. 10. As already seen above, the appellant is the son of Brojendra. Both of them were having shops adjoining to each other. Appellant used to sell fruit from his shop. The appellant for some reasons wanted Brojendra to sell the shop for money to which Brojendra was not agreeing. On the date of incident, even according to the prosecution, an altercation took place between the two and in the heat of passion the appellant caused injuries to Brojendra. The appellant used the small knife which must have been kept in the fruit shop. The incident admittedly took place on a sudden quarrel without any premeditation between the appellant and Brojendra. 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 sentence of fine is however affirmed. 12. With the above modification, the appeal is partly allowed.