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2017 DIGILAW 857 (GAU)

Bideshi Mandal v. State of Assam

2017-07-10

HITESH KUMAR SARMA

body2017
JUDGMENT & ORDER : This is an appeal from jail, preferred by accused/appellant, Bideshi Mandal, who has been convicted, by judgment and order, dated 30-09-2016, passed by the learned Additional Sessions Judge, Bajali, Pathsala, in Sessions Case No. 170/2015, under Sections 302/324 of the IPC, to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for further period of 2 months, for the offence punishable under Section 304 Part-II IPC, and also to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for 1 month, for the offence punishable under Section 324 IPC. 2. I have heard Mr. Rishi Raj Kaushik, learned Amicus Curiae, appearing on behalf of accused-appellant, and Mr. NK Kalita, learned Additional Public Prosecutor, Assam. 3. The prosecution story, as unfolded during the trial, is that there is land dispute amongst the informant, Sri Jatin Mandal, and his brother accused Bideshi Mandal, and another brother (deceased) Milan Mandal, in respect of their ancestral property. For settlement of such dispute amongst them, there took place a meeting, convened by the informant, on 29-08-2013, at village Dhalangbari. In the midst of the meeting, the accused-appellant and his son, Bidyadhar Mandal inflicted injuries on Milan Mandal, the deceased as well as upon the informant, and his son, Tapash Mandal. All the said three injured persons were taken to hospital, although injured Milan Mandal died. 4. On receipt of the FIR, being Exhibit 1, about the above occurrence, Patacharkuchi Police Station registered a case, being Case No. 354/2013, under Sections 326/302/34 of the IPC, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused-appellant, Bideshi Mandal, under Sections 326/302/324/34 IPC. 5. The learned Additional Sessions Judge framed formal charge against the accused-appellant, under Sections 302/324 IPC, to which, he pleaded innocence. At the end of the trial, the accused-appellant was convicted and sentenced, as indicated above. 6. 5. The learned Additional Sessions Judge framed formal charge against the accused-appellant, under Sections 302/324 IPC, to which, he pleaded innocence. At the end of the trial, the accused-appellant was convicted and sentenced, as indicated above. 6. On the basis of the accusations and the evidence on record, this Court is required to decide the following points: a. Whether the accused-appellant, on 29-08-2013, voluntarily caused hurt to informant, Sri Jatin Manda and his son Tapash Mandal, by means of dangerous weapon to attract the charge, under Section 324 of the IPC; b. Whether the accused-appellant committed murder of deceased, Milan Mandal intentionally or knowing that the injury caused by him upon Milan Mandal was likely to cause death of Milan Mandal, making him liable for punishment under Section 302 IPC. 7. For the decisions of the above points, this Court has meticulously scanned the evidence of 13 witnesses, produced by prosecution, and three witnesses, produced by defence. 8. It deserves a mention here that statements of PW3, Sadananda Ramchiary; PW5, Abhiram Sarkar; PW8, Asiruddin and PW9, Akbar Ali, were recorded under Section 164 Cr.P.C., during investigation. 9. The doctor, examined as PW10, exhibited the medical examination reports of the injured, Tapash Mandal and Jatin Mandal, as Exhibits 9 and 10, respectively. He examined the said injured persons with reference to the police case referred to above. While examining injured, Tapash Mandal, he found simple injury caused by sharp weapon. This injured appeared before him with the history of assault with dagger (sharp weapon). At the time of examination, fresh penetrating wound with bleeding in the interior aspect of axilla of about 1½” deep x 2” wide were found. 10. On examination of Jatin Mandal, he found fresh bleeding present, stab wound in the right forum about 2” wide to 1½” deep. He opined that injuries were simple, caused by sharp weapon. 11. There is no dispute at the Bar regarding the injuries found on the persons of aforesaid Tapash Mandal and Jatin Mandal. Tapash Mandal and Jatin Mandal were examined, in this case, as PW1 and PW2 respectively. 12. Now, the question is whether the injuries upon the said victims were caused by the accused-appellant? 13. In this case, it appears that PW6 and PW7, Sri Sambhu Mandal and Sri Jatin Das, respectively, are not the eye witnesses of the occurrence and they were only reported about the occurrence. 12. Now, the question is whether the injuries upon the said victims were caused by the accused-appellant? 13. In this case, it appears that PW6 and PW7, Sri Sambhu Mandal and Sri Jatin Das, respectively, are not the eye witnesses of the occurrence and they were only reported about the occurrence. In absence of corroboration of their evidence by the persons, who reported to them about the incident, their evidence remains hearsay, having no evidentiary value. 14. In their evidence, PW4, PW8 and PW9, Sri Tajuddin Ali, Md. Asuriddin and Md. Akbar Ali, respectively, did not state specifically as to who inflicted the injuries on the injured persons, although their evidence is clear to the extent that while Milan Mandal (since deceased) was making statement in the meeting held for settlement of the land dispute, the informant, deceased Milan Mandal and his son Tapash Mandal assaulted the accused-appellant, Bideshi Mandal. 15. PW1, Sri Jatin Mandal (informant), PW2, his son, PW3 Sadananda Ramciary and PW5 Sri Abhiram Sarkar are eye witnesses to the occurrence and the evidence of PW4, PW8 and PW9 are found to have lent support to the eye witness account of the incident, which, as is evident, is the result of the consequence of mutual assaults between the parties before the infliction of the injuries by sharp cutting weapon, i.e., the knife. 16. The evidence of PW1, the informant, makes it clear that the accused-appellant, the deceased, Milan Mandal and Tapash Mandal (PW2) along with others were present in the meeting in the village that was held for the purpose of settlement of the land dispute between the deceased and the accused-appellant. When the meeting was in session, the accused-appellant inflicted injuries on the chest of the deceased, Milan Mandal, and when Tapash Mandal came forward to save the said deceased, he was also assaulted by the accused-appellant with a knife, and then, he fled away from the place of occurrence. PW2, Tapash Mandal, aforesaid, is also found to have stated in his evidence that while the accused-appellant was making false statement in the meeting, the deceased objected to that, following which, he inflicted injuries on Milan Mandal with a knife, and while he came to save the deceased, he was also assaulted with a knife causing injuries on his person. PW2, Tapash Mandal, aforesaid, is also found to have stated in his evidence that while the accused-appellant was making false statement in the meeting, the deceased objected to that, following which, he inflicted injuries on Milan Mandal with a knife, and while he came to save the deceased, he was also assaulted with a knife causing injuries on his person. When his father, PW1, came forward, he was also injured by the accused-appellant with the knife, and then, the accused-appellant fled away. 17. The evidence of PW3 makes it appear that, in the meeting, aforesaid, suddenly, PW1, Jatin Mandal, deceased, Milan Mandal, accused-appellant, Bideshi Mandal, PW2 Tapash Mandal, attacked each other. During that time, the accused-appellant took out a knife from his pocket and injured Tapash Mandal, Jatin Mandal and the deceased, Milan Mandal. 18. The evidence of PW4, Tazuddin, also clearly shows that in the tussle, PW2, Tapash, PW1, Jatin Mandal sustained injuries along with the deceased, Milan Mandal. 19. The defence failed to dislodge such evidence of the aforesaid witnesses in respect of causing injuries to the persons of PW1 and PW2, i.e. Jatin Mandal and Tapash Mandal, by the accused-appellant with a knife. The defence evidence, on this score, is that the deceased, Milan Mandal, wanted to cause injury to his person with a sharp weapon and when he moved his body aside, the same fell on the informant, Jatin Mandal causing injury to his person. Such evidence of the defence indicates that the accused-appellant held the deceased, Milan Mandal responsible for the injuries sustained by PW1 and PW2. He also claimed that he also sustained injuries in the scuffle, which ensued amongst them. But the medical evidence makes it clearly appear that, on examination of DW1, i.e. accused-appellant, the doctor (PW3) found only old injury on his person, although PW5 is found to have stated in his evidence that he had seen some wound near one of the eyes of the accused-appellant. So the consistent evidence of the aforesaid witnesses PW1, PW2, PW3 received corroboration from PW4 and PW5 that, it was the accused-appellant, who used a sharp cutting weapon to inflict injuries on the person of PW1 and PW2. Therefore, the oral evidence of the aforesaid witnesses, coupled with the medical evidence, vide Exhibits 9 and 10, leaves no doubt that it was the accused-appellant, who inflicted injuries on PW1 and PW2. Therefore, the oral evidence of the aforesaid witnesses, coupled with the medical evidence, vide Exhibits 9 and 10, leaves no doubt that it was the accused-appellant, who inflicted injuries on PW1 and PW2. Therefore, the charge against him under Section 324 IPC is proved beyond all reasonable doubt. 20. In the instant case, the deceased is Milan Mandal. As per evidence of PW1, PW2, PW3, the accused-appellant pierced the knife somewhere around the chest of the deceased. PW12, the doctor, who conducted autopsy of the deceased, exhibited the post mortem report, as Exhibit 11. In the post mortem report under the head ‘External appearance’ in column-2, the following injuries are found: One stitched wound present over the right chest wall, size 3cm long and has three number of stitches, one about 6cm from right shoulder and 13cms from midline at the level of second interposal space obliquely. The doctor also opined that the death was due to haemorrhage and shock resulting from injury sustained on chest and that all injuries are anti mortem and caused by sharp cutting pointed weapon, which is homicidal in nature. The post mortem of the dead body of the deceased was conducted within 12 to 24 hours. So it appears from the evidence of the doctor, who conducted post mortem of the deceased that the cause of death was due to the injuries caused by sharp weapon. 21. PW1, PW2, PW3 and PW4 are found to have deposed in their evidence that while the accused-appellant was making a statement in the meeting held for settlement of the land dispute amongst the brothers, i.e. PW1 Jatin Mandal, deceased Milan Mandal and the accused-appellant, PW2 Tapash Mandal chased him and assaulted him followed by Jatin Mandal and deceased Milan Mandal. From the evidence, it is absolutely clear that before the occurrence of causing injury by sharp weapon upon the deceased, Milan Mandal, PW1, PW2 and the deceased assaulted the accused-appellant, forming a group by themselves, and this happened in the meeting itself. The evidence of PW3 and PW5, who are independent witnesses in the sense that PW1 and PW2 are, respectively, the brother and nephew of the deceased, have categorically stated in their evidence that PW1, PW2 and deceased Milan Mandal were the aggressors. They also saw the accused-appellant causing the injuries to deceased, Milan Mandal with a knife. The evidence of PW3 and PW5, who are independent witnesses in the sense that PW1 and PW2 are, respectively, the brother and nephew of the deceased, have categorically stated in their evidence that PW1, PW2 and deceased Milan Mandal were the aggressors. They also saw the accused-appellant causing the injuries to deceased, Milan Mandal with a knife. Such evidence, coupled with the evidence of PW12, the doctor who conducted the post mortem examination leaves us with no doubt that the deceased was injured with a knife by the accused-appellant, resulting in his death. 22. Now the question remains to be answered is whether the death of the deceased was caused intentionally. 23. The evidence on record, the relevant part of which has been discussed above, makes it succinctly clear that immediately before the occurrence of causing injury to the deceased, Milan Mandal, the accused-appellant was assaulted by PW2 first, then PW1, his elder brother, and they were joined by the deceased, Milan Mandal. The causing of injuries to the person of the deceased, Milan Mandal was during the continuance of assault on his person. Therefore, prima facie it appears that the accused-appellant, at the spur of the moment, injured the deceased, which resulted in his death. Therefore, from the totality of the evidence, it does not appear that the accused-appellant intended to cause death of the deceased, Milan Mandal. 24. There appears no premeditation in committing the offence and the accused-appellant caused the injuries to the deceased in the sudden fight and in the heat of passion. Rather, the accused-appellant caused the injuries, on being provoked, after he was assaulted first. 25. Therefore, it appears that the facts in the case resulting in the death of the deceased fall under exception 4 of Section 300 of the IPC. Exception 4 of Section 300 of the IPC reads as follows: “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’s having taken undue advantage or acted in a cruel or unusual manner.” 26. The Hon’ble Supreme Court in Pappu vs. State of M.P. reported in (2006) 7 SCC 391 , in paragraphs 12 and 13, held as follows: “12. The Hon’ble Supreme Court in Pappu vs. State of M.P. reported in (2006) 7 SCC 391 , in paragraphs 12 and 13, held as follows: “12. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 13. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.” 27. Therefore, it appears that there was a sudden fight, in which the accused-appellant was assaulted at the relevant time of the occurrence after being chased by at least three persons, provoking the accused-appellant to react. The facts and circumstances of this case makes it appear that a mental rift amongst the deceased, accused-appellant, PW1 and PW2 existed prior to the date of occurrence, in view of dispute relating to ancestral property. The meeting, where the occurrence took place, was also convened for settlement of dispute amongst them. The facts and circumstances of this case makes it appear that a mental rift amongst the deceased, accused-appellant, PW1 and PW2 existed prior to the date of occurrence, in view of dispute relating to ancestral property. The meeting, where the occurrence took place, was also convened for settlement of dispute amongst them. Evidently, the accused-appellant was making a statement in the meeting and during the statement he was first assaulted by PW2, joined by PW1 and the deceased, Milan Mandal only to provoke the accused-appellant. Such position can also be inferred from the fact that in the meeting, the accused-appellant was making a statement in respect of the dispute and he was also supposed to make the statement in view of the fact that the same was convened for the purpose of settlement of the dispute. There is no instance, in the evidence on record, even to suggest remotely, that PW2, PW1 and the deceased were provoked by the accused-appellant. Therefore, as stated above, in the considered view of this Court, the accused-appellant caused injuries to the deceased without premeditation, in a sudden fight, and in the heat of passion. He did not take undue advantage in the sense that what he did was only reaction to the assault on his person by a group of persons. 28. So in view of above factual background, in the considered view of this Court, the offence committed by the accused-appellant falls under Section 304 Part-II of the IPC. 29. The learned trial Court sentenced the accused-appellant to rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for further period of two months, for the offence punishable under Section 304 Part-II of the IPC and rigorous imprisonment for one year, and to pay a fine of Rs. 500/-, in default, to suffer further rigorous imprisonment for one month. 30. It is the view of this Court that in the facts and circumstances of the case, the punishment, under Section 304 Part-II, is on in the higher side. Therefore, on an assessment of the facts and circumstances, this Court is of the view that rigorous imprisonment for five years, if imposed, upon the accused-appellant, will meet the ends of justice. Accordingly, the substantive sentence of 7 years, under Section 304, Part-II IPC is reduced to rigorous imprisonment for 5 years. Therefore, on an assessment of the facts and circumstances, this Court is of the view that rigorous imprisonment for five years, if imposed, upon the accused-appellant, will meet the ends of justice. Accordingly, the substantive sentence of 7 years, under Section 304, Part-II IPC is reduced to rigorous imprisonment for 5 years. In respect of punishment under Section 324 of the IPC, there is no reason to interfere with. Both the substantive sentences will run concurrently. In respect of the fine, imposed as a punishment, on both the counts above, no interference is called for. 31. In view of the above, the appeal is partly allowed. 32. Send down the LCR with a copy of the judgment. 33. Send a copy of this judgment to the Superintendent of Jail, Barpeta, who will furnish a copy of the same to the accused-appellant. 34. This Court records its appreciation for the assistance rendered by learned Amicus Curiae, Mr. Rishi Raj Kaushik. Learned Amicus Curiae be paid an amount of Rs. 7,000/-, as remuneration.