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2021 DIGILAW 171 (GAU)

Biju Kr Deb v. State Of Assam

2021-02-23

MIR ALFAZ ALI, SUMAN SHYAM

body2021
JUDGMENT M.A. Ali, J. - Heard learned counsel Mr. B. M. Choudhury appearing for the appellants and the learned Additional Public Prosecutor Mr. M. Phukan appearing for the State respondent. Also heard Mr. B. Chanda, learned counsel for the respondent No. 2. 2. This appeal is directed against the judgment and order dated 27.08.2018 rendered by the learned Additional District & Sessions Judge, (FTC) Hojai, Sankardev Nagar, whereby the appellants were convicted under Sections 294/302/34 of the IPC and sentenced to imprisonment for life with fine of Rs. 10,000/- each, in default simple imprisonment for 3 (three) months. 3. The case of the prosecution, in a nutshell, is that on 12.11.2015, a cultural function was going on at Pub-Dhoniram Pathar on the occasion of Kali Puja. Suddenly, the appellants armed with 'khukuri' and sword ascended to the stage and tried to disrupt the function by creating nuisance. When Mona Paul (the deceased) and other members of the Committee tried to dissuade them from creating nuisance, they hit the deceased on his neck with the khukuri and thereby inflicted grievous injury. Though the deceased was immediately shifted to hospital, he breathed his last on the way. PW2, the younger brother of the deceased, lodged the FIR (Ext. 1) on the basis of which police registered Hojai P.S. Case No. 676/2015 under Sections 294/302/34 of the IPC and eventually submitted the charge sheet against the appellants upon conclusion of the investigation. 4. During trial, the learned Sessions Judge framed charges against the appellants under Sections 302/34 of the IPC, which was abjured by them. 5. 11 witnesses, including the Doctor and the Investigating Officer, were examined by the prosecution to substantiate the charge of murder against the appellants. 6. Dr. Mukut Bora, who conducted the autopsy, has been examined as PW1, who found the following injury:- ''(a) Abrasion on right wrist, (b) Penetrating deep injury on the right side of the neck about right cervical.'' The doctor opined that the death was due to shock and hemorrhage as a result of the injuries. 7. The informant, Arobinda Paul, has been examined as PW2. He testified that when a cultural function was going on at night on the occasion of Kali Puja, both the appellants ascended to the stage, being armed with khukuri and started to create nuisance. 7. The informant, Arobinda Paul, has been examined as PW2. He testified that when a cultural function was going on at night on the occasion of Kali Puja, both the appellants ascended to the stage, being armed with khukuri and started to create nuisance. When the deceased along with other members of the Committee tried to dissuade them, the appellant Sujit suddenly dealt a blow aiming Mona Paul with the khukuri. When Mona Paul resisted the attack, Biju Deb snatched the khukuri from Sujit and stabbed into the neck of Mona Paul. Immediately, the people present there caught the appellants and informed the police. During cross-examination of this witness, it was elicited that when the appellants started quarrelling, Biju Deb did not have any weapon in his hands. 8. Pw3 also stated in the same tune that when the deceased and other members of the Committee tried to dissuade the appellants from creating nuisance, the appellants suddenly assaulted Mona Paul with khukuri. When Mona Paul resisted the blow by holding Sujit, Biju inflicted the injury with the khukuri on his neck. In cross-examination, he deposed that it was only Biju, who ascended to the stage. This witness further stated in cross that he did not notice whether there was any weapon in the hands of Biju. He further stated that he did not notice as to where from Sujit came to the place of occurrence. 9. Pw4, PW5, PW6 and PW7, all of whom were eye witnesses to the occurrence, deposed that initially Sujit hit the deceased with khukuri, which was resisted by him and at that moment, the appellant Biju inflicted the injury on the neck of the deceased by taking the khukuri from Sujit. All these PW4, PW5, PW6 and PW7 stated in their crossexamination that it was only Biju, who ascended to the stage and initially created nuisance. It is also in their evidence, that when Sujit came there later and tried to assault Mona Paul, Biju took the weapon and inflicted the injury. 10. Pw8 and PW9 testified that when Biju started shouting at the members of the Committee and hurdled abuses to them, the deceased along with other members of the Committee brought him down from the stage and at that time Sujit came and hit the deceased with a bhujali. 10. Pw8 and PW9 testified that when Biju started shouting at the members of the Committee and hurdled abuses to them, the deceased along with other members of the Committee brought him down from the stage and at that time Sujit came and hit the deceased with a bhujali. When the deceased put resistance, Biju took the bhujali from Sujit and inflicted the injury. 11. The statements of PW3, PW4, PW5, PW6, PW7 and PW8 were recorded under Section 164 Cr.P.C., and proved as Exts. 5, 6, 7, 8 and 9 during trial, which are also found to be consistent and coherent with their testimony before the Court. 12. Upon appreciation of the above evidence adduced by the prosecution, the learned Sessions Judge recorded conviction of the appellants under Section 302 of the IPC read with Section 34 and awarded sentence as indicated above. 13. Mr. B. M. Choudhury, learned counsel for the appellants, has not seriously contested the finding of the learned Trial Court that the death of the deceased Mona Paul was caused due to the injuries inflicted by the appellants in furtherance of their common intention. However, the contention of the learned counsel for the appellants Mr. Choudhury is that conviction under Section 302 of the IPC could not have been recorded on the basis of the evidence brought on record, inasmuch as, the appellants did not have the intention to cause death. 14. We take note of the fact, that though, it was alleged in the FIR (Ext.1), that both the appellants came together to the place of occurrence, being armed with weapon, the eye witnesses' account shows that initially the appellant Biju alone ascended to the stage and created nuisance and he did not have any weapon in his hands, inasmuch as, PW2, PW3, PW4 and PW5 stated in unambiguous term that it was Biju, who initially entered the stage and created nuisance and he did not have any weapon in his hands. It was also in the oral testimony of the above witnesses that Sujit came later and in course of quarrel dealt a blow aiming the deceased, which was resisted by him and at that moment, Biju snatched the weapon from Sujit and inflicted the injury, which ultimately became fatal. It is also apparent from the medical evidence that only a single blow was given by the appellant Sujit. It is also apparent from the medical evidence that only a single blow was given by the appellant Sujit. It is also clearly discernible from the testimony of the eye witnesses, that when Biju tried to disrupt the function by creating nuisance, the members of the Committee tried to dissuade him and there was a quarrel and in course of such quarrel, suddenly the appellant Biju inflicted the injury at the heat of passion by taking the weapon from Sujit. Thus, the fact established by the prosecution evidence are that both the appellants did not come together to the place of occurrence and the appellant Biju, who initially entered the stage did not have any weapon in his hands. Initially quarrel started when the appellant Biju barged into the stage and the members of the Committee tried to dissuade him and brought him down from the stage and, in the meantime, Sujit also came and in course of the quarrel, the appellant Biju inflicted the injury at the heat of passion by taking the khukuri from Sujit. 15. All these facts established by the prosecution evidence demonstrate that there was no premeditation or intention on the part of the appellants to cause death of the victim and the injury was inflicted at the heat of passion in the course of quarrel and, as such, the act of the appellants inflicting injury to the victim and causing his death very well come within the purview of exception 4 to Section 300 of the IPC and, as such, in our considered opinion the conviction of the appellants under Section 302 of the IPC for murder is not sustainable. Accordingly, we set aside the conviction of the appellants under Section 302 of the IPC, instead, convict them under Section 304 Part-I IPC. Having modified the conviction, we deem it appropriate to sentence the appellants to undergo rigorous imprisonment for 10 years. The sentence of fine and imprisonment in default remains unaltered. 16. Accordingly, the appeal stands partly allowed and is disposed of. 17. Send down the records.