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2016 DIGILAW 836 (GAU)

Rajit Chutia v. State of Assam

2016-09-05

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Rajit Chutia has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. 2. The victim of the incident was Jiten Chutia, aged 45 years. He was also brother of the appellant. 3. According to the prosecution case, deceased Jiten and appellant Rajit were brothers. They however had some dispute over property. On 12.2.2013, the appellant had engaged two saw-men Jatin Pegu (PW-1) and Raju Doley (PW-2) for cutting some trees. While Jatin and Raju were cutting the trees, Jiten went to them and objected by saying that trees fell into his share of land. In the result, to avoid any quarrel Jatin and Raju stopped cutting the trees and Jiten also left the place. But soon thereafter, the appellant himself came with an axe and started cutting the trees. On hearing the sound of cutting of trees, Jiten again went there with a dao and objected the appellant from cutting. This led to quarrel between the appellant and Jiten and in a fit of anger, appellant attacked Jiten with an axe by which he was cutting the trees. Jiten sustained multiple cut injuries and died. Jatin and Raju are eye witnesses to the incident. On receiving the information, Juga Chutia, wife of Jiten rushed to the place of occurrence and saw him lying dead with injuries on his body. Juga then lodged the ejahar exhibit 1 at Police Station Dhakuakhana. The police seized dao Material exhibit ‘Ka’ vide Exhibit-2 of Jiten from the place of occurrence. The police also seized axe Material exhibit ‘kha’ vide seizure memo exhibit 3 from the joint granary of appellant and Jiten. 4. Dr. Dhurbajyoti Borgohain (PW-10) conducted the post mortem examination on the body of Jiten. He found multiple cut injuries on his body. According to the post mortem examination report, Jiten died due to multiple cut injuries on the scalp and upper back. His post mortem examination report is exhibit 5. 5. The trial court mainly relying upon the evidence of eye witnesses Jatin and Raju convicted and sentenced the appellant as aforesaid. The trial court also relied upon the post mortem examination report exhibit 5. 6. During the trial the appellant abjured his guilt and pleaded false implication. 7. His post mortem examination report is exhibit 5. 5. The trial court mainly relying upon the evidence of eye witnesses Jatin and Raju convicted and sentenced the appellant as aforesaid. The trial court also relied upon the post mortem examination report exhibit 5. 6. During the trial the appellant abjured his guilt and pleaded false implication. 7. As mentioned above, Jatin and Raju are independent eye witnesses to the incident. Both of them have deposed in one voice that they were engaged by the appellant for cutting the trees and when they started cutting, Jiten came and objected. According to them, they respected the objection of Jiten as he was brother of the appellant. They have further testified that soon thereafter the appellant came with an axe and him self started cutting the trees. And on hearing the sound of cutting of trees, Jiten also reached there with a dao and reiterated his objection. According to Raju, Jiten resisted the appellant from cutting the trees by revolving his dao and then appellant attacked Jiten with his dao and caused multiple injuries to him. Nothing has been suggested in the cross examination of Jatin and Raju to discredit their evidence. Their evidence also stands corroborated by the post mortem examination report exhibit 5 prepared by Dr. Dhurbajyoti Borgohain. In view of the evidence of Jatin and Raju, 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. 8. Learned counsel for the 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. 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. As already seen above, the appellant was only interested in cutting the trees which he thought belonged to him. The appellant had engaged Jatin and Raju for this purpose. And when both of them were cutting the trees, Jiten resisted them from doing so. The appellant then himself started cutting the trees with an axe but Jiten again reached there armed with a dao and resisted the appellant from cutting. At that time, Jiten even started revolving his dao at the appellant. This conduct of Jiten angered the appellant and he in a fit of anger attacked Jiten with an axe which he already had with him. Raju has admitted in his evidence that had Jiten not revolved his dao while resisting the appellant from cutting the trees, the incident would not have occurred at all. Apparently, the incident took place on a sudden quarrel without any premeditation between the appellant and Jiten. 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 there under 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. Needless to mention that Juga Chutia, wife of deceased Jiten, had to lose her husband at an early age. And as a result, she has been forced to live in penury. Besides, the loss she suffered is irreparable. Considering the same, we deem it just and proper to award compensation to Juga Chutia. 12. Needless to mention that Juga Chutia, wife of deceased Jiten, had to lose her husband at an early age. And as a result, she has been forced to live in penury. Besides, the loss she suffered is irreparable. Considering the same, we deem it just and proper to award compensation to Juga Chutia. Accordingly, we direct the Assam State Legal Services Authority to pay compensation of Rs.1,50,000/- to Juga Chutia under Section 357-A of the Code of Criminal Procedure. 13. With the above modification, the appeal is partly allowed.