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2020 DIGILAW 152 (GAU)

Arun Borah v. State of Assam

2020-02-06

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT : MIR ALFAZ ALI, J. 1. Heard learned Amicus Curiae Mr. U. Choudhury, for the appellant and Mr. B.J. Dutta, learned Addl. P.P., Assam for the respondents. 2. This appeal is directed against the judgment and order dated 09.05.2017 passed by the learned Additional Sessions Judge, Golaghat in Sessions Case No. 04/2016. By the said judgment, the learned Sessions Judge convicted the appellant under Section 302 IPC and sentenced him to imprisonment for life and fine of Rs. 2,000/- with default stipulation. 3. The prosecution case, as unfolded in the FIR was that on 15.12.2015, at about 6 PM, when the appellant Arun Borah was beating his minor children in his house, the victim went there hearing cry of the children, whereupon the appellant inflicted injuries to the victim by hacking him with a hoe and later on, the victim succumbed to the injuries. PW-2, the son of the victim lodged the FIR (Ext. 2), on the basis of which, police registered Golaghat PS. Case No. 1372/2015 under Section 302 IPC. During investigation, police recorded the statement of the witnesses, prepared inquest report, seized the alleged weapon of offence and sent the body for postmortem examination. PW-12, Dr. Dipak Dutta conducted the postmortem examination on the body of the victim, who found the following injuries. "Bone deed cut horizontal incised wound on top of the scalp extending from right to left parietal region of around 10 cm x bone depth x 2.5 cm." In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of the antemortem injury sustained by the victim on his head. 4. On completion of the investigation charge sheet was laid against appellant under Section 302 IPC. The offence being triable by court of sessions, the case was committed to the court of Sessions. Learned Sessions Judge framed charge against the present appellant under Section 302 IPC, which was abjured by him. 5. During trial, prosecution examined 14 witnesses in order to bring home the charge. Out of the 14 witnesses examined by the prosecution, PW-11, Indra Mohan Bora was the son of the accused. He testified that it was around 6 PM, his father had been assaulting him as well as his brother and sister. 5. During trial, prosecution examined 14 witnesses in order to bring home the charge. Out of the 14 witnesses examined by the prosecution, PW-11, Indra Mohan Bora was the son of the accused. He testified that it was around 6 PM, his father had been assaulting him as well as his brother and sister. Being assaulted when they cried aloud, the deceased who happen to be their grandfather and lives nearby came to their courtyard and requested his father not to beat the children, whereupon the appellant stated that he had no right to say in his personal affair and picked up a hoe lying nearby and hacked him with the same on his head. They raised alarm, hearing which, neighboring people assembled there. During cross examination of this witness, it was elicited that his father (accused) had consumed liquor and was in angry mood. He also stated that an altercation took place between the accused and the deceased. Statement of this witness was also recorded under Section 164 Cr.P.C. by the Judicial Magistrate. We take note of the statement of this witness recorded under Section 164 Cr.P.C. and we find that the witness has been consistent in his evidence. Nothing material could be elicited during cross examination so as to create any dent in the oral testimony of this witness, which is found to be consistent throughout the proceeding. 6. Close on the heal of the evidence of PW-11, the PW-4, Tutumoni Saikia deposed that while he was going to fetch his cattle and reached near the house of the accused, he heard the children of the accused crying and screaming. He also noticed that the deceased proceeding towards the courtyard of the accused, and telling that one should not beat the small children. When the deceased raised objection against beating of the children, the accused shouted at him by saying "are you trying to act like a CID" and saying so, he picked up a hoe, which was lying nearby and struck the victim on his head. Receiving injuries, he fell down on the ground. He also raised alarm and informed the elder son of the deceased, Ratul Buragohain (PW-2). He further stated that immediately police was informed, who arrived there and seized the hoe vide Ext. 1, seizure list, which was also proved by him in court as Material Ext. 1. Receiving injuries, he fell down on the ground. He also raised alarm and informed the elder son of the deceased, Ratul Buragohain (PW-2). He further stated that immediately police was informed, who arrived there and seized the hoe vide Ext. 1, seizure list, which was also proved by him in court as Material Ext. 1. In cross examination, testimony of this witness also remained unshaken. We also take note of the previous statement of this witness, which was recorded under Section 164 Cr.P.C. and proved as Ext. 3 and find that his statement was consistent and coherent with the evidence deposed in court. 7. PW-8, who was also a close neighbor of the accused deposed that he had seen through window that the accused person was beating his children. He also stated to have noticed the deceased in the courtyard of the accused. According to him, when the deceased asked the accused as to why he was beating his small children, he raised objection and hacked on the head of the deceased with a hoe. In his statement recorded under Section 164 Cr.P.C., which has been proved as Ext. 6 also he had stated in the same manner and as such, this witness is also found quite consistent and coherent in his version throughout the proceeding and defence has not been able to create any dent in his testimony. 8. The informant has been examined as PW-2, who testified that hearing noise he rushed to the house of the accused and found his father (victim) lying on the courtyard of the accused and his body was smeared with blood. He also stated to have seen the accused standing in the doorway. He further stated that the accused confessed before him that he had cut the deceased with the hoe. He also stated to have seen a hoe in the hands of the accused. During cross examination, it was elicited, that in his previous statement recorded by police, he did not state about the accused making any extra-judicial confession before him. It was also elicited in his cross examination that the accused had driven away his wife, who happens to be his sister. 9. PW-1, PW-3, PW-5, PW-6, PW-7 & PW-9 were also post occurrence witnesses and they did not have the opportunity to see the occurrence. It was also elicited in his cross examination that the accused had driven away his wife, who happens to be his sister. 9. PW-1, PW-3, PW-5, PW-6, PW-7 & PW-9 were also post occurrence witnesses and they did not have the opportunity to see the occurrence. According to PW-1, having come to the place of occurrence, he had seen the deceased with injury. He also witnessed seizure of the weapon of offence vide Ext. 1, and identified the same in court as Material Ext. 1. The PW-3 & PW-5 were witnesses to the inquest report, which was prepared by PW-13, the Circle Officer. PW-10 was the scribe, who had written the FIR at the instance of the informant and the PW-14 was the Investigating Officer, who also testified that he had seized the hoe vide Ext. 1 in the place of occurrence. 10. Having appreciated the above evidence, learned Sessions Judge convicted the appellant under Section 302 IPC and awarded the sentence as indicated above. 11. On assessment of the evidence as reproduced hereinabove, we also find that even if the extrajudicial confession, as deposed by PW-2 is discarded, the unshaken testimony of PW-11, who was none, but the son of the accused supported by PW-8 & PW-4, who were also witnesses to the occurrence and the medical evidence leave no room for doubt that it was the appellant, who had inflicted the injuries to the victim with a hoe, which ultimately became fatal and caused death of the deceased. Learned amicus curiae also, has not contested the finding of the learned Sessions Judge that the appellant was the perpetrator of the offence, who has inflicted the injuries to the victim with the hoe causing his death. However, contention raised by the learned amicus curiae is that a single injury was inflicted by the accused in course of quarrel at the heat of passion and therefore, there was neither premeditation nor intention on the part of the accused to cause death and as such, conviction could not have been recorded under Section 302 IPC. At best a conviction under Section 304-II IPC could have been recorded, submits the learned amicus curiae. 12. Learned Addl. At best a conviction under Section 304-II IPC could have been recorded, submits the learned amicus curiae. 12. Learned Addl. P.P. submits that though there was no intention or pre-meditation on the part of the accused appellant, as apparent from the evidence, having regard to the severity of the injury and the weapon used, atleast conviction should be under Section 304-I IPC 13. We have considered the submissions of the learned amicus curiae and the learned Addl. P.P. 14. Evidently, as indicate above, the victim and the accused were related. It is also in the evidence of PW-11, the son of the accused as well as PW-8 and PW-4 that quarrel and altercation took place between the accused and the victim on the issue of accused assaulting his minor children. Admittedly, the accused is the son-in-law of the deceased and relation between them was strain as the accused had driven away his wife from her house When the accused was assaulting his minor children, who happens to be the grand children of the deceased, he (deceased) came forward and raised objection, which the accused did not like and picked up altercation and quarrel with the deceased stating that why he was interfering in his affairs and in course of such altercation, the accused picked up a hoe, which was lying nearby and dealt a single blow, which ultimately became fatal to the deceased. Apparently, the weapon used by the accused was a natural agricultural apparatus, which is available in every house in the village and as such, the weapon used in the instant case, cannot be considered to be any unnatural weapon of offence. Thus, having taken note of the fact, that the accused was assaulting his minor children, which was resisted by the victim, who happens to be their grandfather, whereupon altercation and quarrel ensued between the accused and the victim and in course of such altercation and quarrel, the accused picked up the hoe, which was lying nearby and at the heat of passion dealt a single blow, it is difficult to attribute any pre-meditation or intention to cause death of the deceased to the appellant. Considering the injury inflicted by the accused and also the nature of weapon used, it is also difficult to say that either he had acted in a cruel manner or had taken any undue advantage. Considering the injury inflicted by the accused and also the nature of weapon used, it is also difficult to say that either he had acted in a cruel manner or had taken any undue advantage. Therefore, when the accused has assaulted the victim by giving a single blow at the heat of passion in course of sudden quarrel, without having taken any undue advantage or acting in a cruel or unusual manner, the act of the accused in the present case, in our considered view, come within the sweep of exception 4 to Section 300 IPC and as such, conviction of the accused appellant in the facts and circumstances, could not have been recorded under Section 302 IPC. Therefore, we set aside the conviction and sentence of the accused appellant under Section 302 IPC. We are however, of the considered opinion, having regard to the weapon used by the accused and the nature of injury cause, it cannot be said that the appellant did not have intention to cause such bodily injury which is likely to cause death, though, the accused might not have intention to cause death. Therefore, we convict the accused appellant under Section 304(i) IPC and sentenced him to rigorous imprisonment for 10 years. He is also sentenced to pay fine of Rs. 5000/-, in default to undergo simple imprisonment for three months. The period already undergone shall stand set off. 15. We take note of the fact that the learned Sessions Judge has not passed any order pertaining to compensation. Let a copy of this judgment be send to the District legal Services Authority, which in turn shall examine the necessity of awarding any compensation and pass appropriate order in respect of awarding compensation under the Victim Compensation Scheme. 16. Appreciating the assistance rendered by Mr. U. Choudhury, learned Amicus Curiae, we hereby provide that he will be entitled to Rs. 7500/- as professional fee, which shall be paid to him by the Gauhati High Court Legal Services Committee upon production of a copy of this judgment. 17. The appeal stands partly allowed. 18. Send down the LCR.