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2016 DIGILAW 984 (GAU)

Boga Murmu v. State of Assam

2016-11-07

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Boga Murmu has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victim of the incident was Brajai Murmu, aged 32 years. 3. According to the prosecution case, the appellant and Brajai were brothers. They lived in their respective houses, but shared a common courtyard. On 20.2.2011, sometime in the afternoon, appellant’s son was collecting betel-nuts from the enclosed yard of Brajai. This was not liked by Brajai and, therefore, he beat appellant’s son. The appellant then came and questioned Brajai why he had beaten his son. The questioning led to a quarrel between the appellant and Brajai. In the quarrel, Brajai assaulted the appellant with a lathi tree. The appellant also then, in a fit of anger, brought a dao and caused an injury on the neck of Brajai with it. He caused one another injury with a dao on the shoulder of Brajai. Brajai was immediately taken to Borhat Government Hospital, where doctor declared him death. Ejahar exhibit 6 of the incident was made by wife Putoli Murmu (PW-1) of Brajai at Police Station Borhat. In the ejahar, she has categorically named appellant as the assailant of Brajai. 4. On 21.2.2011, the post mortem examination on the dead body of Brajai was conducted by Dr. Sadhan Bora (PW-9). The doctor found one sharp cut injury over back of the neck and one sharp cut injury over the left arm. In the post mortem examination report exhibit 2, the doctor has opined that Brajai died due to injury on the neck. 5. During trial, the appellant denied his guilt and pleaded false implication. But, while being examined as an accused, the appellant admitted his guilt and stated that he caused injury to Brajai with a dao in anger. 6. The trial court, relying upon the evidence of witnesses, who are mainly close relations of both appellant and Brajai, convicted and sentenced the appellant, as aforesaid. 7. As mentioned above, Putoli Murmu (PW-1) is wife of Brajai. She is an eye witness to the incident. She has admitted that both appellant and Brajai had fought with lathis, whereafter, the appellant suddenly brought a dao and caused injuries to Brajai. At the time of incident, this witness was having pregnancy of eight months. 7. As mentioned above, Putoli Murmu (PW-1) is wife of Brajai. She is an eye witness to the incident. She has admitted that both appellant and Brajai had fought with lathis, whereafter, the appellant suddenly brought a dao and caused injuries to Brajai. At the time of incident, this witness was having pregnancy of eight months. She also had no enmity with the appellant. Nothing has been brought out in the cross examination to suggest why she would falsely implicate the appellant. We too find her evidence reliable and truthful. 8. Tipu Majhi Murmu (PW-4) is father of both appellant and Brajai. He in his evidence narrated the prosecution case as mentioned above. According to him, both appellant and Brajai entered into a quarrel over beating of former’s son by the latter. Thereafter, Brajai assaulted the appellant with a lathi tree whereupon, the appellant brought a dao and caused the fatal injury on the neck of Brajai. Similar is the evidence of Duli Murmu (PW-5). She is wife of Tipu Majhi Murmu and mother of both Brajai and appellant. We have examined the evidence of these witnesses and we find no good ground to disbelieve them. Besides this, the appellant has himself admitted his guilt of committing the crime while being examined under Section 313 of the Code of Criminal Procedure. 9. In view of the evidence of Putoli Murmu (PW-1), Tipu Majhi Murmu (PW-4) and Duli Murmu (PW-5) as well as the admission of appellant, 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. 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. 11. As seen above, suddenly a quarrel took place between the appellant and Brajai over beating of former’s son by the latter. And during quarrel, Brajai dealt a blow with lathi tree on the appellant. The appellant then, in fit of anger, brought a dao and dealt a blow on the neck of Brajai with it. The incident, admittedly, took place without any pre-meditation between the appellant and his brother Brajai. Having regard to the fact situation 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. 12. 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 sentence of fine is however affirmed. 13. With the above modification, the appeal is partly allowed.