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2017 DIGILAW 18 (CAL)

BHARAT SARKAR v. STATE OF WEST BENGAL

2017-01-05

SANJIB BANERJEE, SIDDHARTHA CHATTOPADHYAY

body2017
JUDGMENT : SANJIB BANERJEE, J. The primary ground urged in this appeal is that the conviction should have been under the second part of Section 304 of the Penal Code for culpable homicide not amounting to murder rather than under Section 302 thereof. 2. The facts are not in much dispute and little attempt has been made on behalf of the appellant to discredit the versions of the eye-witnesses whose testimonies were relied upon by the trial court. Briefly stated, it appears that on September 2, 2006 at about 11 am there was an altercation between the victim and the appellant upon the appellant uprooting the cement pillars put up by the family of the victim to demarcate the boundary between the parcels of land owned by the two families. The appellant uprooted one or more cement pillars and threw them some distance away. The victim protested such conduct and demanded that a surveyor be engaged to demarcate the boundary. The victim also attempted to pick up a cement pillar, with the possible intention of reinstalling the same. The appellant, who had a sabal in his hand for the purpose of digging the earth to uproot the cement pillars, struck at least two blows on the head of the victim when she bent down to try and pick up a cement pillar. The blows were from the blunt side of the sabal which resulted in the almost instantaneous death of the victim. 3. A close neighbour of the victim claims to have witnessed the incident and the prosecution could not ascribe any motive to her testimony. Another eye-witness corroborated what took place, but she was a further distance away from the place of occurrence. A labourer attached to another neighbour also claims to have been an eye-witness who alerted the relevant neighbour immediately upon witnessing the incident. The trial judge found the oral evidence to be truthful and acceptable and held that none of the eye-witnesses were broken down in course of the cross-examination nor was any animosity between any of such witnesses and the appellant established. The trial court found the post-mortem report and the opinion of the medical officer to be in-keeping with the incident described by the eye-witnesses and consistent with their claims of the nature of the injury. 4. The trial court found the post-mortem report and the opinion of the medical officer to be in-keeping with the incident described by the eye-witnesses and consistent with their claims of the nature of the injury. 4. The trial court referred to the process of assault, the manner of assault and the nature of the offending weapon to conclude that there was “overwhelming evidence on record which indicates that the accused but none else (was) the author of the crime in question” and that the prosecution had established the charge levelled against the appellant with “cogent and sufficient evidence that the accused … had murdered the deceased … by way of inflicting Sabal blows on her head who died on spot instantly.” The appellant was found guilty of the offence punishable under Section 302 of the Code and convicted for murder. He was sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs.2000/-, in default whereof he would suffer further rigorous imprisonment for six months. 5. The submission on behalf of the appellant is that the offence should have been regarded under the second part of Section 304 of the Code as the facts attracted the fourth Exception to Section 300 thereof. It is emphasised on behalf of the appellant that the evidence unmistakably points to a quarrel that took place and the appellant, in a fit of rage, struck the victim with the sabal that was in his hand without premeditation and without taking undue advantage or acting in a cruel or unusual manner. 6. To invoke the fourth Exception to Section 300 of the Code, all the four requirements thereunder need to be satisfied: that there was a sudden fight; that there was no premeditation to cause death to the victim; that the act was done in the heat of passion; and, that the accused did not take undue advantage or act in a cruel or unusual manner. The appellant seeks to take the benefit under the Explanation to such Exception that it is immaterial which party offered the provocation or commenced the first assault. 7. What the evidence reveals is that the appellant had a sabal with which he intended to dig the earth to unfasten the cement pillars put up as boundary and that he uprooted one or more pillars and threw at least one to the side. 7. What the evidence reveals is that the appellant had a sabal with which he intended to dig the earth to unfasten the cement pillars put up as boundary and that he uprooted one or more pillars and threw at least one to the side. The evidence also shows that there was an altercation between the victim and the appellant, though there is no evidence of the two exchanging any blows or of the altercation having degenerated into any physical violence. However, it was also asserted by the eye-witnesses that the victim bent down to pick up one of the cement pillars that had been uprooted and cast aside by the appellant. There is no evidence of the victim seeking to use the cement pillar as a weapon against the appellant. Equally, there is no evidence that the victim was merely trying to put it back into place. The two principal eye-witnesses, whose corroborating version has been believed, testified that the blows were struck by the appellant at the time that the victim bent down to pick up a cement pillar. 8. A sabal is an iron rod, generally less than three feet in height and having a diameter of about two or three inches with a cylindrical body abruptly tapering to a chisel at the bottom end. In these parts, a sabal is used for the purpose of digging the earth to insert bamboo poles or the like or for the purpose of digging around anything embedded in the earth with the aim of uprooting the same. The chisel end of a sabal is used for the digging and the blunt circular end is used to stamp down the earth around anything which has been inserted so as to make the bamboo pole or the like stand steady. A sabal would be used with both hands to dig the earth and the fingers would, typically, be clasped around the sabal about three-fourths of the way up to get maximum leverage. 9. The post-mortem report speaks of the fatal injury being by a blunt weapon. The injury in this case must have been with the sabal struck on the head as a pole would be and a longitudinal injury occurring down the length of the skull which came into contact with the side of the sabal. 9. The post-mortem report speaks of the fatal injury being by a blunt weapon. The injury in this case must have been with the sabal struck on the head as a pole would be and a longitudinal injury occurring down the length of the skull which came into contact with the side of the sabal. The injury would also be consistent with the sabal being suddenly picked up from the digging act and being struck with the other end on the head of the victim. The appellant did not use the sharp, chisel end of the sabal to dig a hole in the victim’s cranium. 10. It is true that the entire incident may have been caused by the act of the appellant in uprooting one or more cement pillars put up as a demarcation of the boundary of the lands owned by the family of the deceased and the family of the appellant; but once the offence is recognised to have been committed on the spur of the moment and in course of a heated altercation during which the victim was reaching for an uprooted cement pillar, it does not appear to be a premeditated act of murder. It is only the fourth ingredient that is necessary to be satisfied for the appellant to be given the benefit under the fourth Exception to Section 300 of the Code. 11. A sabal is quite a dangerous instrument and the sheer weight of a sabal qualifies it as a weapon. If the chisel end of a sabal is used, it can penetrate the soft parts of a body like a spear. But what is important in the given facts is that, rightly or wrongly, the appellant had embarked on an exercise which reasonably required him to use a sabal to uproot the cement pillars. The altercation or heated exchange took place between the parties when the appellant was in the process of uprooting the other pillars. The fact that at least one of the cement pillars had been uprooted would show that the appellant desired to obliterate the boundary demarcation. The appellant had not gone looking for the victim or to the victim’s house with a sabal in hand. The fact that at least one of the cement pillars had been uprooted would show that the appellant desired to obliterate the boundary demarcation. The appellant had not gone looking for the victim or to the victim’s house with a sabal in hand. The appellant was in the middle of what may be described as an act of vandalism, but that is a far-cry from the appellant intending to cause grievous injury to the victim or to murder her. In isolation, the appellant hitting the victim with a sabal would suggest that the appellant took undue advantage or acted in a cruel or unusual manner. But when it appears that the appellant was digging the earth to uproot the cement pillars and the victim was trying to pick up a pillar that had been already uprooted, it is evident that the appellant came into a fit of rage and struck the victim with what the appellant had in his hands. 12. Such act must necessarily be regarded as culpable homicide not amounting to murder for the appellant to be convicted for a lesser offence and granted a shorter stay in prison. 13. Criminal Appeal No. 201 of 2008 succeeds in part by finding the appellant guilty of culpable homicide not amounting to murder and earning him a sentence of rigorous imprisonment for ten years under the second limb of Section 304 of the Code. The time spent in custody will be set off against the sentence. The impugned order of punishment is modified accordingly and the convict is relieved of the fine imposed by such order. 14. A copy of this judgment and order be made over as expeditiously as possible to the convict and a further copy thereof be sent to the correctional home where he is lodged. Sanjib Banerjee & Siddhartha Chattopadhyay, JJ. I agree.