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2022 DIGILAW 33 (MEG)

Donbokstar Syngkli v. State of Meghalaya

2022-03-03

SANJIB BANERJEE, WANLURA DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The short issue canvassed by the appellant is that the offence committed by him should have been seen to be covered under the second part of Section 304 of the Indian Penal Code, 1860 and not by the first part. 2. The appellant has been sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs. 20,000/-; and, in default of payment of the fine, to suffer simple imprisonment for a further period of six months. 3. The evidence is clear and the reading of the evidence leaves little doubt as to the incident. It appears that the victim, the step-father of the appellant, was upset with the mother of the appellant because the mother had not dissuaded the appellant from handing over a memory card used on the mobile phone to a friend of the appellant. It appears that on the day prior to the incident, the victim struck the appellant's mother and caused serious injury to her. 4. The description of the incident of February 13, 2013 by the eyewitnesses who testified in course of the trial was that the appellant apparently asked his step-father not to hit the appellant's mother, particularly in connection with the relevant memory card. At this stage, the victim picked up a dao, a sharp-cutting instrument like a machete, and brandished the same in a manner as if to strike the appellant's mother. The appellant intervened, grabbed the weapon from his father and threw it down to the ground, picked up a firewood from a pile lying around and struck the father on the head. As to the description of the incident, there does not appear to be any dispute that it was in such circumstances as recorded above that the victim came to suffer the injury which ultimately resulted in his death. The appellant admitted his role and recounted what happened at around dinner time on the fateful evening. There was no attempt by the appellant to underplay what he had done, in course of his statement rendered under Section 313 of the Code of Criminal Procedure, 1973. 5. After summarising the evidence and upon referring to the testimonies of the various witnesses, the trial court framed the key question and promptly answered the same in paragraphs 33 and 34 of the impugned judgment: '33. 5. After summarising the evidence and upon referring to the testimonies of the various witnesses, the trial court framed the key question and promptly answered the same in paragraphs 33 and 34 of the impugned judgment: '33. Now the pertinent question is whether the accused committed culpable homicide not amounting to murder. Before I consider the said question, let me consider the requirement of section 304 IPC. Section 304 IPC consist of 2 parts- First Part is generally referred to section 304-Part I, second part as Section 304-Part II- In First Part causing of bodily injury to victim with intention to cause death-Part-II, comes into play when death is caused by an act with knowledge that it is likely to cause death, but without any intention to cause death or cause such bodily injury as is likely to cause death. '34. Though the incident was the result of a quarrel between the accused and the deceased, the head injury inflicted on the deceased with a firewood, that too on the vital part like head, indicates that the accused had given the blow with an intention to cause the death of the deceased. In view of the above, I have no hesitation, in holding that the accused had committed culpable homicide not amounting to murder.' 6. The trial court then referred to several judgments of the Supreme Court as to when an offence would be punishable under Section 302 of the Penal Code and when under Section 304 thereof, but the key discussion as to whether it was a culpable homicide not amounting to murder or whether the act was done with the knowledge or intention that it was likely to cause death, does not find any mention in the impugned judgment. The basis for the conviction as indicated in the impugned judgment is exceptionable. 7. Since there is no appeal by the State, the fact that the trial court accepted that this was a case of culpable homicide not amounting to murder need not be questioned. In any event, the facts are such that would justify that this may not have been a pre-mediated murder and may have been a reaction to the action of the victim. 8. In any event, the facts are such that would justify that this may not have been a pre-mediated murder and may have been a reaction to the action of the victim. 8. As the evidence panned out, it revealed that the victim had picked up a dao in an attempt to strike the appellant's mother and, it was at such stage, that the appellant intervened, with the possible intention of saving his mother. It is also evident that the appellant grabbed hold of the dao from the hand of the victim. It may have been understandable even if the appellant had used the same dao to strike the victim. That, notwithstanding the grave and sudden provocation within the meaning of the first Exception to Section 300 of the Penal Code, would still be a case covered by the first part of Section 304 of the Penal Code. But what cannot be missed is that the appellant wrested the dao from the victim and threw it down. The appellant did not use the dao to strike the victim; but to ensure that even when the father was unarmed he could not use his limbs to inflict physical injuries on the appellant's mother, he picked up a block of wood to strike his father, possibly with the intention of temporarily maiming or disabling the victim from inflicting any injury on the mother. 9. The fact that the dao was not used as a weapon to strike the victim and a firewood lying around was used, prompts the benefit under the second part of Section 304 of the Penal Code to be given to the appellant. There was grave and sudden provocation and there was likelihood of serious injury to the appellant's mother as a result of the threatened act of the victim. The appellant disarmed the victim, but did not use the weapon to strike the victim. He chose a lesser instrument. In the appellant throwing the dao away and picking up a firewood, there was adequate proof of the lack of intention on the part of the appellant to cause death to the victim. The trial court ought to have been given the appellant the benefit of doubt considering the circumstances. 10. He chose a lesser instrument. In the appellant throwing the dao away and picking up a firewood, there was adequate proof of the lack of intention on the part of the appellant to cause death to the victim. The trial court ought to have been given the appellant the benefit of doubt considering the circumstances. 10. Accordingly, the judgment of conviction of January 10, 2019 is modified by finding the appellant guilty of an offence punishable under the second part of Section 304 of the Penal Code. Consequently, and particularly considering the age of the appellant and the fact that he was attempting to save or protect his mother, the sentence in excess of 30 months that has been served out by the appellant is deemed to be appropriate punishment for the offence, along with a fine of Rs. 5,000/-; and, in default of the fine being deposited within a month from date, the appellant will suffer a further 15 days of simple imprisonment. The appellant will be entitled to immediate release, subject to the payment of the fine. The judgment and order impugned are modified accordingly. 11. Crl.A. No. 9 of 2019 is disposed of.