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2022 DIGILAW 48 (MEG)

Spelling Kurbah v. State of Meghalaya

2022-03-15

SANJIB BANERJEE, WANLURA DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - Before the merits of the appeal are addressed, it is the judgment of conviction that needs to be noticed. 2. The impugned judgment of April 30, 2019 is a classic example of what a judgment can never be. Of the 36 pages expended in coming to a conclusion that the appellant herein had committed murder and was liable to be punished therefor, no more than six lines can be said to be the consideration of the matter or the reflection of how the judicial mind was applied to the facts to arrive at the conclusion. 3. The first 30 pages or so of the judgment reproduces what the various witnesses said, what exhibits had been relied upon and the principal charge that was levelled against the appellant herein. After such Herculean effort, the trial court went on to record the following which indicates some application of mind, never mind the extent thereof: '36. The injuries inflicted on the deceased with a sharp cutting weapon, that too on the vital part like neck, indicate that the accused had given the blow with an intention to cause the death of the deceased....' The next two pages carry a quotation from a Supreme Court judgment before a further reflection of the judicial mind appears over the first three lines of paragraph 37: '37. In the case at hand, the accused caused injury on the vital part of the body that too with a deadly weapon like a 'dao' which is a sharp edge and heavy weapon where the accused is very much aware that assaulting an unarmed person would cause injury and is likely to cause death...' 4. The second instance of application of mind, however, expresses the same sense that the first three lines of paragraph 36 also conveyed. Paragraph 37 then contains another copious quotation from a Supreme Court judgment before a further three lines of the Judge's contribution appears from the following: '... The medical evidence is corroborated with the evidences of the witnesses. The accused person had the knowledge that the weapon used (Material Exhibit-1) which is a sharp edge weapon is a very dangerous if used will prove fatal, so there is no case of provocation.' 5. The medical evidence is corroborated with the evidences of the witnesses. The accused person had the knowledge that the weapon used (Material Exhibit-1) which is a sharp edge weapon is a very dangerous if used will prove fatal, so there is no case of provocation.' 5. Even if the gibberish that is passed off as English is excused, it is the repetition of what is contained in the first three lines of paragraph 36 and the first three lines of paragraph 37, except that the case of provocation is referred to and it is concluded that just because a deadly weapon was used, no case of provocation had been made out. One does not follow from the other; and, there is not even a line of discussion on whether the offence was one of murder or one of culpable homicide not amounting to murder, or why. 6. Paragraph 38 of the judgment refers to the appellant's answers in course of his examination under Section 313 of the Code of Criminal Procedure, 1973 before the operative part of the judgment appears at paragraph 39 thereof: '39. Having regards (sic) to the oral and documentary evidence adhered (sic) by the witnesses and in the light of the decision laid down by the Hon'ble Supreme Court, I am of the firm view that the prosecution has established the case against the accused U/S 302 IPC beyond any shadow of doubt and is convicted (sic).' 7. The conclusion in any judgment, under our constitutional scheme of things governed by the rule of law, must be founded on reasons. The reasons indicate the application of the mind to the matters in issue and the analysis of the facts against the applicable law. In a sense, the reasons chart out the journey of adjudication from the basic facts to the inferences and the ultimate conclusion drawn therefrom by applying the applicable law. 8. The impugned judgment is singularly lacking in reasons and betrays complete non-application of mind or the exercise of any mental faculty at all. 9. The appellant relies on at least three eyewitness statements to the effect that the deceased had repeatedly teased the appellant on that fateful night of December 14, 2016 and the appellant was enraged thereby. 8. The impugned judgment is singularly lacking in reasons and betrays complete non-application of mind or the exercise of any mental faculty at all. 9. The appellant relies on at least three eyewitness statements to the effect that the deceased had repeatedly teased the appellant on that fateful night of December 14, 2016 and the appellant was enraged thereby. It is true that the appellant had picked up a wait lyngkut or dao, a sharp cutting weapon like a machete, and was in the process of swinging the same at the would-be victim when one of the eyewitnesses intervened, snatched the weapon from the appellant and put it down. However, the evidence clearly shows that the deceased continued to tease the appellant, whereupon a scuffle broke out and the appellant picked up the weapon a second time and struck the neck of the deceased that resulted in the fatal wound. However, it is the consistent version of the eyewitnesses that immediately after the appellant had inflicted the blow, he grabbed hold of the body of his brother, the victim, tried to press his hand against the wound, probably in an attempt to stop or control the flow of blood and, later, sobbed inconsolably. 10. Several of the workers were working on a project at Amkhrieh village in December, 2016, including the appellant and his brother, the victim. In the evening of December 14, 2016, while some of the persons were cooking for their dinner at the camp where they put up, the victim kept taunting and teasing the appellant. The appellant fumed and came to attack the victim, but despite the appellant being thwarted the first time, upon the taunting continuing, the appellant could not bear it. The appellant charged at his brother, a scuffle ensued and the appellant picked up the dao and swung it at the neck of the brother. There is no case of premeditation made out. There is a case of provocation and a case of a quarrel. The dao appeared to be around. It is nobody's case that the dao was specifically brought with the intention of the same being used by the appellant against the victim. 11. There is no case of premeditation made out. There is a case of provocation and a case of a quarrel. The dao appeared to be around. It is nobody's case that the dao was specifically brought with the intention of the same being used by the appellant against the victim. 11. Though the prosecution contends that the fact that the dao was once snatched from the appellant and he later picked it up and hit the victim therewith demonstrates an element of premeditation, such contention has to be rejected out of hand. It is possible that if PW 7 Raju, who had initially snatched the dao from the appellant, had thrown it some distance away, the appellant may have picked up whatever else was lying nearby to hit the victim therewith; it was just that Raju having left the dao from where the appellant had initially picked it up, that the appellant had the chance to pick it up again when he was peeved and enraged at the continuing taunting by his brother despite his entreaties to stop. 12. Section 299 of the Indian Penal Code, 1860 defines culpable homicide to be an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or committed with the knowledge that it is likely to cause death. Section 300 of the Penal Code begins with a clause of exception and provides that culpable homicide would amount to murder, if the act by which the death is caused is done with the intention of causing death, or with the intention of causing such bodily injury as the offender knows to be likely to cause death, or if it is done with the intention of causing bodily injury and the bodily injury intended to be inflicted is sufficient in the ordinary course to cause death, or if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. 13. The Exceptions referred to in the opening limb of Section 300 of the Penal Code follow later in such provision. 13. The Exceptions referred to in the opening limb of Section 300 of the Penal Code follow later in such provision. Of the four Exceptions, the first is a case where a person loses self-control upon grave and sudden provocation and causes the death of the person who gave the provocation or the death of any other by mistake or accident. Such first Exception is hedged with certain conditions that would not be relevant for the present purpose. The second Exception pertains to self-defence, which is also not apposite in the present context. The third Exception pertains to a public servant acting for the advancement of public justice and such Exception has not been invoked in this case. The fifth Exception, also, does not apply. The appellant relies on the fourth Exception which reads as follows: 'Exception 4.- 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 having taken undue advantage or acted in a cruel or unusual manner.' 14. The oral evidence of five workers who were present at the camp at Amkhrieh on December 14, 2016, along with the appellant herein and the deceased, may be seen as these five were eyewitnesses and their statements bring out what really led to the appellant striking his brother with the wait lyngkut. The evidence of PW 3 Krister Nongrang is the most lucid and the same is supported and corroborated by the testimonies of PW 4 Phrik Warjri, PW 5 Kyntli Kharsyntiew, PW 6 Salesh Lawriniang and PW 7 Raju Rana. 15. According to PW 3, almost all the labourers at the Amkhrieh camp, including the deceased and the appellant herein, consumed liquor and an argument broke out between brothers Spelling Kurbah, the appellant herein, and Bartu Kurbah, the then would-be victim. PW 3 claimed that the would-be victim kept on teasing the appellant by calling him masi dap (buffalo) and the appellant requested him to stop. Upon the would-be victim refusing to relent, the appellant caught hold of the wait lyngkut which was lying around and tried to strike his brother. Raju was close at hand and he intervened and snatched the weapon from the appellant, but put it down on the ground from near where the appellant had picked it up. 16. Upon the would-be victim refusing to relent, the appellant caught hold of the wait lyngkut which was lying around and tried to strike his brother. Raju was close at hand and he intervened and snatched the weapon from the appellant, but put it down on the ground from near where the appellant had picked it up. 16. It is the next bit of the testimony of PW 3 which is of vital importance, as it indicates the exact nature of the incident and is crucial in assessing whether the offence would be covered by any of the Exceptions in Section 300 of the Penal Code: 'There was scuffle between the deceased and the accused. The accused managed to get back the dao and struck on the neck of the deceased.' 17. PW 3 then went on to say that immediately after the appellant struck the victim, co-worker Phrik asked the appellant to cover the wound as it was bleeding, whereupon the appellant 'covered the wound of the deceased person with a blue blanket'. The appellant then handed over his mobile phone to PW 3 and requested PW 3 to call a vehicle and also inform a sister of the appellant about the incident. PW 3 also asserted in his cross-examination that both the appellant and the deceased were drunk and they were quarrelling over trivial matters. 18. PW 4 more or less corroborated what PW 3 had stated, but not in as much detail. PW 4 repeated that the appellant covered the victim's wound with a blanket and, when he realized that the victim was dead, 'he sat down and started crying'. PW 5 confirmed that both the appellant and the victim were drunk at the relevant time. PW 6 recalled in course of his testimony in Court that even after the appellant had calmed down after his first attempt to strike his brother with the wait lyngkut, the victim started the argument again which infuriated the appellant. PW 7 corroborated that the victim kept on teasing the appellant which the appellant could not bear. 19. On the basis of the co-workers' description of the incident, it is evident that there was provocation by the victim as he was irritated at being taunted. PW 7 corroborated that the victim kept on teasing the appellant which the appellant could not bear. 19. On the basis of the co-workers' description of the incident, it is evident that there was provocation by the victim as he was irritated at being taunted. If Raju had not stopped the appellant the first time, the matter may have been covered by the first Exception in Section 300 of the Penal Code, subject to ascertaining whether the provocation was grave and sudden. It is evident that the victim's taunting of the appellant was like a red rag to a bull and it must be kept in mind that the appellant may have been drunk at the relevant point of time. 20. However, after the appellant's failed first attempt to strike the victim, the victim continued to tease and taunt the appellant, whereupon, according to PW 3, a scuffle broke out between the two and, in course of such scuffle, the appellant picked up the same weapon and dealt his brother the killer blow. This would bring the matter within the fold of the fourth Exception in Section 300 of the Penal Code as there was a sudden fight in the heat of passion upon a sudden quarrel and there is no evidence of the appellant having taken undue advantage or acted in a cruel or unusual manner. 21. In the present case, the evidence clearly brings out that there was a quarrel between the two brothers upon the would-be victim teasing or taunting the appellant and refusing to give up despite the appellant's request. As a result of the constant irritation that the appellant was subjected to, in the heat of passion, the appellant confronted the victim, the two engaged in a fight and the appellant picked up the nearest instrument that the appellant found that would inflict bodily injury to the victim so as to stop the victim from continuing the diatribe. It so happened that the nearest instrument or implement that the appellant could lay his hands on was the wait lyngkut. 22. Section 304 of the Penal Code makes a clear distinction between its two parts. The distinction lies in whether the act had been done with or without the intention of causing death or causing such bodily injury as was likely to cause death. 22. Section 304 of the Penal Code makes a clear distinction between its two parts. The distinction lies in whether the act had been done with or without the intention of causing death or causing such bodily injury as was likely to cause death. Since it was a sharp cutting weapon that had been picked up and such weapon was brandished a second time after it had earlier been snatched away from the appellant, it would seem that in his fit of rage, the appellant may have intended to cause death or cause such bodily injury as was likely to cause death. If the weapon used were to be a stick or less dangerous instrument, the appellant may have qualified to get the benefit under the second part of Section 304 of the Penal Code. 23. The fact that the appellant ought to have been aware, despite being enraged that the wait lyngkut was a sharp cutting weapon that was capable of killing a person, coupled with the fact that the appellant dealt the blow at the neck of the victim, would preclude any benefit of doubt being given to the appellant for him to qualify for the lesser offence and the punishment under the second part of Section 304 of the Penal Code.. 24. The trial court erred in completely failing to visualise the situation or the act of the victim that may have enraged the appellant and that prompted the appellant to swing the weapon at the victim. The trial court relied on the medical evidence, on which much emphasis has been attempted to be placed by the prosecution even at the appellate stage, but which evidence is irrelevant for the present consideration. It is not the appellant's case that he had not dealt a blow to the victim. But it was a solitary blow dealt in a fit of rage and with the full strength that the appellant could summon at such stage. That the blow was to the neck and with the full strength of a normal adult male used to menial labour, would explain the ferocity of the blow and the nature of the injury inflicted. But there is no evidence of the appellant continuing to inflict wounds after dealing the initial blow. That the blow was to the neck and with the full strength of a normal adult male used to menial labour, would explain the ferocity of the blow and the nature of the injury inflicted. But there is no evidence of the appellant continuing to inflict wounds after dealing the initial blow. Indeed, the evidence reveals that the appellant may have realised the seriousness or foolishness of what he had done, whereupon the appellant tried to stop the flow of blood and, upon finding the attempt to be in vain, he cried over the injury that he had dealt to his brother. 25. There is no doubt that a serious offence was committed, but there is equally no doubt that there was no element of premeditation or any semblance of cruelty or unusual behaviour that would disqualify the appellant from obtaining the benefit under the fourth Exception in Section 300 of the Penal Code. 26. Considering the nature of the incident and the fact that the appellant had earlier been disarmed but still went on to commit the act, the punishment that the appellant deserves would be on the higher side; but the punishment in this case would not be as one under Section 302 of the Penal Code, though the maximum punishment under the first part of Section 304 of the Penal Code is also life imprisonment. Considering the situation, the conduct of the appellant both prior to the commission of the act and immediately thereafter, a ten-year sentence would suffice. 27. Accordingly, the judgment of conviction of April 30, 2019 and the sentence passed are modified. It is held that the offence committed by the appellant herein would amount to culpable homicide not being murder and being covered by the fourth Exception in Section 300 of the Penal Code. Further, considering the nature of the incident and the fact that the appellant had committed the act in a fit of rage and there was no element of cruelty or unusual behaviour involved, the sentence is reduced to one of ten years' simple imprisonment. In view of the ten-year sentence imposed, the appellant is not required to pay any fine. 28. Crl.A. No. 22 of 2019 is disposed of. 29. Let a copy of this judgment and order be immediately made available to the appellant free of cost.