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2022 DIGILAW 149 (MEG)

Dinesh Niang v. State of Meghalaya

2022-06-07

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The short ground canvassed in this appeal is that the conviction in this case could not have been under Section 302 of the Indian Penal Code, 1860 as the circumstances were such that the offence had to be regarded as culpable homicide not amounting to murder and dealt with under Section 304 of the Penal Code. 2. There is very little dispute as to the circumstances pertaining to the incident that took place on January 2, 2009 when both the victim and the appellant herein had gone for a picnic with several other villagers to a place called Jrikhla. 3. According to the appellant, he was intoxicated and upon being insulted and threatened by the victim, there was a quarrel; and, in the heat of the moment, the appellant took out his knife, stabbed the victim and fled the spot. The appellant apparently immediately confided in his two relatives who were later called as PW 1 and PW 2 at the trial. The appellant also made a confession under Section 164 of the Code of Criminal Procedure, 1973 to the following effect: 'On 2nd January, 09 around 5:30 P.M. I had been for picnic with my friend on reaching Jrikhla, I sat there with my two friends suddenly one Shri. Rida Dkhar of Lumstong threatened me. Since I am in intoxicated mood I stabbed him with my own knife. That's all I remember and fled of my house.' 4. No eye-witness was presented by the prosecution, though the case that was made out was that about 100 villagers had gone for the picnic with a local leader. Only one of the witnesses claimed that upon hearing that a fight had broken out, such witness went to the spot and found the victim with his intestines having coming out of his abdomen. Such witness did not, actually, see the act being perpetrated or the victim being assaulted. The victim was taken to the hospital and died subsequently. 5. Both PW 1 and PW 2, uncles of the appellant herein, testified that they had been informed of the incident by the appellant. PW 1 claimed that he was asked by the police to search for the murder weapon, whereupon he went to the place of occurrence and found the knife which was handed over to the police. 6. 5. Both PW 1 and PW 2, uncles of the appellant herein, testified that they had been informed of the incident by the appellant. PW 1 claimed that he was asked by the police to search for the murder weapon, whereupon he went to the place of occurrence and found the knife which was handed over to the police. 6. In the state of evidence that was before the trial court, there was nothing to suggest that there was any long-standing enmity between the appellant and the victim or that there could have been any possibility of the appellant of having premeditated the murder or having any intention to kill the victim. 7. The fourth Exception in Section 300 of the Penal Code speaks of death being caused, without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel. The additional conditions indicated in the provision are that the offender should not have taken undue advantage or acted in a cruel manner. The width of the provision is enlarged by the Explanation thereto which provides that it is immaterial as to which party offers the provocation or commits the first assault. 8. As per the statement of the appellant before the Magistrate, the appellant and two friends were sitting around when the victim arrived and threatened the appellant. However, neither the nature nor the manner of the threat is described for any possible assessment as to whether the provocation was so grave and sudden that the appellant's retaliation would be covered by the first Exception in Section 300 of the Penal Code. 9. At the same time, it is evident from the testimony of the witness who claimed to have arrived at the place of occurrence and found the victim with his intestines out that the word had gone around that a quarrel and a fight had taken place. Thus, upon the appreciation of the material before the trial court, it is apparent that a quarrel broke out which progressed to a fight upon the victim threatening the appellant. It is possible that in course of such quarrel that culminated into a fight, the appellant, in the heat of passion, took out his knife and stabbed the victim. 10. Thus, upon the appreciation of the material before the trial court, it is apparent that a quarrel broke out which progressed to a fight upon the victim threatening the appellant. It is possible that in course of such quarrel that culminated into a fight, the appellant, in the heat of passion, took out his knife and stabbed the victim. 10. It is submitted on behalf of the State that the appellant should not get the benefit under the fourth Exception in Section 300 of the Penal Code in view of the nature of the injuries discovered on the victim in course of the post-mortem examination. The State points out that there were three similar serious injuries in the abdomen of the victim and the State submits that this would reveal an element of cruelty and the appellant taking advantage of an unarmed opponent. The State maintains that if the fatal injury was as a result of a solitary blow or a single shot of a gun or a single stab, it could be regarded as an act committed in the heat of passion; but the three serious injuries to the abdomen would preclude the offence being seen as one under the relevant Exception, both by the nature of the act and also by the element of cruelty involved therewith. 11. The injuries in the present case were all in the abdomen and not around various parts of the body of the victim. While it is possible to kill a person with a solitary stab of a sharp weapon like a knife, when it is the abdomen which is attacked, it is not difficult to perform an act of multiple stabbing in the heat of passion or a fit of rage. 12. The mere fact that there were three injuries, all serious enough to kill the victim, would not, by itself, preclude the act from being regarded as one covered by the fourth Exception in Section 300 of the Penal Code since a series of short jabs in the abdomen which is unguarded by any bone may be seen as one action instead of several, thought out, strikes by the offender. At any rate, it was for the prosecution to establish beyond reasonable doubt that the offence committed was one of murder. At any rate, it was for the prosecution to establish beyond reasonable doubt that the offence committed was one of murder. The material placed before the trial court would leave enough room for doubt in such regard, just as the fourth Exception in Section 300 of the Penal Code provides enough latitude for the offence committed in the present case to be seen to be covered thereby. To repeat, there was no case of premeditation made out nor was any motive attributed to the appellant and, in the absence of any other ocular evidence, the confessional statement of the appellant reveals that the incident took place upon the appellant being infuriated by being threatened by the victim. 13. Through the length of the expansive judgment of conviction of September 30, 2021 there is no reference to any motive or premeditation on the part of the appellant and though several provisions and decisions have been referred to in the rather long discussion in the impugned judgment, this aspect of the matter - as to whether the act would fall within one of the Exceptions in Section 300 of the Penal Code - does not appear to have been seriously considered. There is no doubt that the nature of the assault committed by the appellant reveals that the appellant wanted to kill or cause serious bodily injury to the victim and, as such, the offence would be covered by the first part of Section 304 of the Penal Code; but the lack of premeditation or any motive, the suddenness of the incident in course of a picnic and the appellant's uncontroverted assertion of the threat by the victim ought to have prompted the trial court to explore the possibility of an act done in the heat of passion upon a sudden quarrel. 14. The appellant has relied on a unreported judgment of this Court rendered on March 15, 2022 in Crl.A.No.22 of 2019 (Spelling Kurbah v. State of Meghalaya) where, in similar circumstances, upon a quarrel and a scuffle breaking out between two brothers, the offender in that case wielded a wait lyngkut at his brother that resulted in the death of the victim. A further judgment reported at (2018) 2 SCC 496 (Atul Thakur v. State of Himachal Pradesh) has been brought where the Supreme Court reduced the sentence by treating the offence committed by the appellant as one covered by Section 304 of the Penal Code. However, unlike in the present case where a sharp weapon was used, in the reported case the appellant assaulted the victim by raining blows on him. The nature of the assault prompted the Supreme Court to regard the matter to be covered by the second part of Section 304 of the Penal Code. 15. In assessing whether the offence committed in a particular case would amount to mere culpable homicide or murder, the facts are of paramount importance. In the present case, the facts as presented in course of the trial did not conclusively establish that the assault committed by the appellant on the victim amounted to murder. As a consequence, the benefit of the relevant Exception in Section 300 of the Penal Code should have been extended to the appellant herein and, as a consequence, a reduced sentence awarded. 16. Though Section 304 Part I permits even life imprisonment to be awarded, considering the circumstances in this case and the use of a deadly knife by the appellant herein, the appropriate punishment would be rigorous imprisonment for a maximum period of 10 years, together with the fine of Rs.50,000/- as already imposed by the sentence passed by the trial court. 17. Accordingly, Crl.A.No.8 of 2022 is disposed of by modifying the impugned judgment of conviction of September 30, 2021 and holding the appellant guilty of culpable homicide not amounting to murder and sentencing the appellant to rigorous imprisonment for 10 years under Section 304 of the Penal Code together with the fine of Rs.50,000/- as awarded by the impugned sentence. In default of payment of the fine, the appellant will undergo a further two months of simple imprisonment. 18. Let an authenticated copy of this judgment and order be immediately made available to the appellant free of cost.