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2017 DIGILAW 81 (GAU)

Robin Phukan v. State of Assam

2017-01-18

AJIT SINGH, MANOJIT BHUYAN

body2017
JUDGMENT AND ORDER : 1. The sole appellant Robin Phukan 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. The trial court has, however, acquitted co-accused Ratan Phukan of the same charge. 2. The victim of the incident was Dina Phukan, aged about 35 years. 3. According to the prosecution case, the appellant, deceased Dina Phukan and Ratan Phukan were brothers. They lived separately, but in a close vicinity. The paddy crop of the appellant and Ratan were damaged by the cock of Dina. This lead to a quarrel on 23.7.2010 around 3.30 p.m. between Dina, on one side, and the appellant and Ratan, on the other side. Dina then dealt a blow on the head of Ratan with a lathi, due to which, the latter sat down on the ground. Dina tried to give another blow to Ratan, but Robin hacked Dina with a dao on his neck. The incident was witnessed by Beauty Phukan (PW-1) wife of Dina. Seeing the incident, she got terrified and ran away along with her two minor sons. Dina died on the spot. Ejahar exhibit 1 of the incident was made by Beauty Phukan at Police Station Gaurisagar against the appellant and Ratan. On receiving the information, Officer In-charge of the Police Station, Ajoy Kumar Dutta (PW-13), immediately rushed to the place of occurrence. There, he found Dina lying dead with bleeding injuries on his body. He prepared the inquest report exhibit 2 of the dead body. He also arrested the appellant and Ratan. Thereafter, he seized one dao Material Exhibit 1, vide exhibit 4, on the disclosure statement of appellant. 4. Dr. Biswajit Dutta (PW-2) conducted the post mortem examination on the dead body. He found four cut injuries on the neck, jaw, face and mouth. The doctor in his post mortem examination report Exhibit 3, opined that Dina died due to ante mortem cut injuries, which were possibly caused by the seized Material Exhibit 1 dao. 5. At the stage of framing of charge, the appellant pleaded not guilty, but while being examined as an accused under Section 313 of the Code of Criminal Procedure, he stated that he did not kill Dina on his free will and he did not know what had happened to him. 5. At the stage of framing of charge, the appellant pleaded not guilty, but while being examined as an accused under Section 313 of the Code of Criminal Procedure, he stated that he did not kill Dina on his free will and he did not know what had happened to him. As regards co-accused Ratan, he completely denied his involvement in the commission of crime. 6. The trial court mainly relying upon the evidence of eye witness Beauty Phukan, convicted and sentenced the appellant as aforesaid. As mentioned above, the trial court acquitted co-accused Ratan. 7. Beauty Phukan is wife of Dina Phukan. The incident took place in the premises of Dina. Beauty Phukan was, therefore, naturally present at the place of occurrence, when the incident took place. She in her evidence has reiterated the prosecution case as narrated above. She stood firm in her evidence that the appellant had hacked Dina with a dao, due to which, he died. She has honestly blamed Dina also for the incident by saying that he had dealt a lathi blow on the head of Ratan after a quarrel. We have examined the evidence of this witness and we find no good reason to disbelieve her. Even Investigating Officer Ajoy Kumar Dutta has admitted in his evidence that he had sent Ratan to the hospital for treatment of his head injury, but he could not collect the injury report. Likewise, Sarumai Phukan (PW-3) has also admitted that she saw the appellant holding injured Ratan and Dina lying dead. Sarumai is mother of the appellant, Dina and Ratan. The evidence of Beauty Phukan, thus, stands substantially corroborated by the evidence of witnesses – Ajoy Kumar Dutta and Sarumai. Even the post mortem examination report of Dina corroborates her evidence. 8. In view of the evidence of Beauty Phukan, 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. 9. 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. 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, it was deceased Dina, who picked up the quarrel and dealt a lathi blow on the head of Ratan, due to which, he sat down on the ground and when Dina was about to give another blow on Ratan, the appellant lost control and in the heat of passion, hacked Dina with a dao by causing injuries on his neck and face. The incident, admittedly, took place without any pre-meditation between the appellant and his younger brother Dina. 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. 10. 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. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. 11. With the above modification, the appeal is partly allowed.