Babul Sarma vs The State Of Assam And Anr
2021 Latest Caselaw 1288 Gua

                                                                           Page No.# 1/11

GAHC010120612016




                           THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                              Case No. : Crl.A./301/2016

           BABUL SARMA
           S/O LATE GHANA KANTA SARMA, R/O PUB GOROIMARI, P.S. MAJBAT,
           DIST. UDALGURI, ASSAM.


           VERSUS

           THE STATE OF ASSAM and ANR

           2:RANJIT NATH

            S/O TANKESWAR NATH
            R/O VILL. NEPAL PARA
            P.S. MAZBAT
            DIST. UDALGURI BTAD
            ASSAM

Advocate for the Petitioner : MS. R K SAINI
Advocate for the Respondent : PP, ASSAM

BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM HONOURABLE MR. JUSTICE MIR ALFAZ ALI

JUDGMENT & ORDER (ORAL) Date : 01-04-2021

Suman Shyam, J

1. Heard Mrs. M.D. Choudhury, learned counsel appearing for the appellant. We have

also heard Ms. B. Bhuyan, learned APP, Assam, appearing for the State/ respondent No.1.

Page No.# 2/11

None has appeared for the informant.

2. The instant appeal has been filed assailing the judgement and order dated

25/06/2015 passed by the learned District and Sessions Judge, Udalguri in connection with

Sessions Case No. 108(U)/2014, convicting the sole appellant under section 302/324 of the

IPC and sentencing him to undergo rigorous imprisonment for life and to pay fine of Rs.

2000/-, in default, to suffer rigorous imprisonment for 2 (two) months for the offence charged

under Section 302 IPC and had also sentenced him to undergo rigorous imprisonment for one

year for the offence charged under section 324 IPC. Both the sentences were to run

concurrently.

3. The prosecution case, in a nutshell, is that on 30/05/2014, at about 10 a.m., the

accused had hacked the victim with a 'beki dao' on several parts of her body, as a result of

which, she had sustained grievous injuries and died after some time.

4. On 30/05/2014, an ejahar was lodged by the younger brother of the deceased

before the Officer- in-Charge of Mazbat Police Station, Mazbat, reporting the incident. Based

on the said ejahar, Mazbat Police Station case No. 26/2014 was registered under section

326/302 of the IPC and the matter was taken up for investigation by the police. After

completion of usual investigation, charge sheet was laid against the accused. Based on the

charge sheet, charge under section 326/302 IPC was framed against the accused and the

same was read over and explained to him. But since the accused had pleaded innocence and

claimed to be tried, the matter went up for trial.

5. The prosecution case is based on the testimony of two eye witnesses who had

seen the occurrence. There is also an injured witness i.e. husband of the deceased. In order

to bring home the murder charge, the prosecution side had examined as many as 19 Page No.# 3/11

witnesses. After conclusion of recording of evidence of prosecution witnesses, the statement

of accused was recorded under Section 313 Cr.P.c. The case of the accused was one of total

denial. However, the defense side did not adduce any evidence.

6. PW-1 Sri Ranjit Nath is the informant in this case. He did not see the occerrence

but came to know about it from his sister-in-law i.e. the wife of the accused, who had gone

to the house of the deceased on that day and seen the victim being cut by her husband. On

getting the information, the PW-1 immediately came running to the house of the deceased

but as soon as he reached there, his elder sister had died. On seeing cut injuries on his

brother-in-law's (husband of the victim) hand, he rushed him to the Udalguri Hospital. PW-1

has stated that he had lodged the ejahar on the same day.

7. PW-2 Smt. Damayanti Nath is one of the eye witnesses in this case. According to

PW-2, there was a boundary dispute over land between the accused person and the

deceased. PW-2 has deposed that the incident took place at around 10-30 a.m. and just

before the incident, some guests had arrived .They had asked the accused and the deceased

not to quarrel. The PW-2 was called to serve a cup of tea. So she went to the place of the

deceased. The deceased was to bring fire wood for preparing tea. One piece of fire wood fell

on the ground. When the deceased went to pick up the fire wood, the accused came there

and dealt a 'dao' blow on the chest of the deceased. This witness has also emphatically

deposed that she saw the incident herself and at that time, her 2 ½ years old child was on

her lap. Fearing that the 'dao' blow might fall on her baby, she stepped back and later, out of

fear, came home crying. The police took her to the Magistrate and got her statement

recorded. During her cross examination, the testimony of this witness could not be shaken.

8. PW-3 Sri Laba Kumar Sarma is a neighbour of the accused. He has also deposed Page No.# 4/11

that on the day of the incident, the accused and the deceased had a quarrel over boundary of

land. The quarrel took place at around 10.30 a.m. When the quarrel turned a bitter one, he

went inside his home. The place where the quarrel took place was partitioned with betel

leaves. When he heard sound of somebody forcibly entering the place of quarrel, he came

out from his home and saw the accused person in his house. He then heard a women crying "

someone is being cut". Going there, he saw the victim in an injured state, sitting under the

fan with her head slanted.

9. PW-13 Sri Tarun Sarmah is a injured witness and the husband of the victim. He has

deposed that the incident took place in their house. At the time of the occurrence, he was on

the road. His daughter Sumi Sharma raised an alarm shouting that some one was being cut.

The accused then hacked him on his left shoulder and the fingers thrice. When he fell on the

ground, the accused surrendered before the Police at Orang Police Station. PW-13 has

further stated that at first the accused had cut his wife and then hearing the alarm by her

daughter, he went to the place of occurrence. At that time, the accused had hacked him. This

witness has also deposed that the accused is his younger brother.

10. PW-14 Smt. Khiroda Nath is another eye witness in this case. She is the younger

sister of the victim. PW-14 has deposed that on the date of the occurrence, she had gone to

her elder sister's house. The accused rebuked her elder sister in filthy language. At that time,

the victim called her inside to prepare tea but when her sister went to bring fire wood, a

piece of fire wood fell near the kitchen door. At that time, she saw accused Babul hacking her

sister from behind. When she raised alarm, her brother-in-law i.e. the husband of the victim

came there running. Upon reaching there, the accused had cut her brother-in-law also which

she saw for herself. PW-14 had also deposed that her statement was recorded by the Page No.# 5/11

Magistrate and Ext. 4 was the said statement. During her cross examination nothing adverse

could be elicited by the defense side so as to discredit this witness.

11. PW-10 Sri. Dulal Nath has also deposed that he had witnessed the incident. He had

heard the accused quarreling with his elder brother. Then he went near them. From a

distance, he saw the accused going out after cutting the victim with a 'dao'.Later on, he came

to know that the accused has surrendered in the Orang Police Station.

12. PW-6 Dr. Anil lalong was on duty as the SDM & HO, Udalguri Civil Hospital on

31/05/2014 and he had performed post- mortem examination upon the dead body of the

victim Mamoni Sarma. According to PW-6, following injuries were found in the dead body :-

"EXTERNAL APPEARANCE :

A female dead body, average, colour: fair, Hair: long and black, eyes and mouth closed, height 5 feet, weight 51 kg, rigor-mortis present. Injury:-

• One deep sharp cut wound 6 inches x 6 inches x 1 inch right side of chest just below the breast.

• One cut mark at bone of left shoulder 4 inches x ½ inche x ¼ inch.

           •    Clotted blood at nose holes.
       CRANIUM AND SPINAL CANAL :-

Scalp, Skull - normal, Membrane, Brain, Liver, Kidneys, Bladder, Organs of generation

- all are normal.

THORAX :-

Pleurae- pleurae of right side ruptured latterly, (Pleurae means covering of the lung) More details description :-

One deep sharp cut wound 6 inches x 6 inches x 1 inch right side of chest just below the breast. One cut mark at bone of left shoulder 4 inches x ½ inche x ¼ inch. Rupture of pleurae. Haemorrhage and puncture in lings."

The doctor has opined as follows :-

"Opinion:-

In my opinion, death is due to haemorrhagic shock sustained by sharp cut injury and death occurred 24 to 48 hours before post mortem examination, airway obstruction with massive cardiac arrest. Ext. 2 is my post - mortem report and Ext. 2(1) is my signature."

13. PW-5 Dr. Bipin Rabha had treated the injured husband of the victim i.e. PW-13. He Page No.# 6/11

has deposed before the Court confirming the following injuries seen on PW-13:-

"Upon examination, I found the following injuries-

• Incise wound at left arm size 2" x ½" deep. • Cut injury at the base of the left index finger. Injuries are fresh.

Remarks - Cut injury due to sharp cutting weapon. Exbt. = In my injury report.

Exbt. 1(1) is my signature."

14. PW-19 S.I. Dipak Das is the I.O. in this case who had conducted the investigation

and submitted charge sheet against the accused person. PW-19 has stated that upon receipt

of information from one Dulal Nath over phone that a person of his village has cut his own

sister-in-law, he made Mazbat PS GD entry No. 487 dated 30/05/2014 and thereafter, went to

the place of occurrence along with other staff. He drew a sketch map of the place of

occurrence. In the meantime, he received information from the Officer-in-charge of the Orang

Police Station that the accused had surrendered in the Police Station along with a "dao" in his

hand and he had informed the Police that he came there after cutting his brother and sister-

in-law. PW-19 has confirmed that after investigation he found a blood stained "gamocha"

(towel) used to tie up the injuries sustained by the victim, which was found lying in the place

of occurrence and he had seized the same in presence of witnesses. Ext. 9 was the seizure

list. The I.O. has also confirmed that he got the statement of the two eye witnesses recorded

under Section 164 Cr.P.c. and sent the blood stained "gamocha" and "dao" to Forensic

Science Laboratory for examination. The statement of the injured witness i.e. Pw-13 was also

recorded under Section 164 Cr.PC. He had later collected the FSL report and Post mortem

report and submitted charge sheet against the accused person.

15. PW-15 Mrs R.Bora Handique was the Scientific Officer posted in the Directorate of

Forensic Science, Kahilipara who had received the two parcels sent on 03.06.2014 in Page No.# 7/11

connection with Mazbat P.S. Case No 26/2014.This witness has confirmed the receipt of a

bamboo handled "dao" and a "gamocha" stained with blood vide Sero No 3340/A and 3340/B

respectively. PW-15 has also confirmed that both the samples had tested positive for human

blood of Group "A". This witness has proved the Forensic Report Ext-5.

16. PW-4 Sri Maheswar Sarma is another witness who had deposed that on the day of

the incident, at about 10 to 10-30 a.m. he went to the house of the accused and saw that the

deceased was having an altercation with the accused and his elder brother. So, he asked to

allow him to leave the place as the atmosphere was vitiated. Later on, the accused had cut

the deceased. PW-4 had, however, stated that he did not witness the incident but saw the cut

injury sometime after the accused had disappeared from his home.

17. PW-7 Sri Ajit Nath was working as a Constable in the Orang Police Station and he

has deposed that on the day of the incident, at around 11-30 a.m., the accused had arrived

at the Police Station and told him that he had killed a person. According to PW-7, the accused

had a 'dao' in his hand and he said that he had killed a person with that dao. Later on, Sri

Bhuban Chandra Nath, S.I. of Orang Police Station had seized a "beki dao" (Curved dao)

fitted to a bamboo handle of about 3 ½ feet with blood stains from the possession of the

accused vide Ext. 3 seizure memo.

18. PW-8 Md. Mainuddin had incidentally visited the Orang Police Station on the date of

the incident around 11-30 a.m. to 12 noon and found the accused was present there along

with a 'dao' in his hand. PW-8 has deposed that the Police had seized the dao brought by the

accused by obtaining his signature in the seizure memo (Ext. 3).

19. PW-16 is the Judicial Magistrate First Class (JMFC) who had recorded the

statements of PWs 2, 13 and 14 under section 164 Cr.P.C.

Page No.# 8/11

20. PW-17 is the Executive Magistrate who had conducted inquest on the dead body

and submitted Inquest Report.

21. PW-18 was the S.I. posted in the Mazbat Police Station before whom, the accused

had surrendered with a 'dao'.He has deposed that the 'dao' was seized vide seizure memo

Ext-3. PW-18 has proved Ext-3.

22. The remaining witnesses viz PWs 9,11 and 12 did not witness the incident. PWs 9

and 12 saw the accused in the Orang Police Station. PW-11 saw the PW-13 lying in the

courtyard after the incident.

23. Taking note of the evidence available on record, the learned trial Court has held that

the charge brought against the accused had been proved by the prosecution side beyond all

reasonable doubt. Accordingly, the accused was convicted and sentenced, as indicated above.

24. Mrs. Choudhury, learned counsel for the appellant submits that in view of the

evidence on record, she would not argue for acquittal of the appellant but it is her submission

that the assault made by the accused upon the deceased was on account of a quarrel that

took place between them immediately before the occurrence. The learned counsel for the

appellant submits that it is established from the evidence led by the prosecution side that an

altercation took place between the accused and the deceased over land boundary issue and

being provoked by the deceased and her husband, the accused had assaulted both of them in

a heat of passion, having lost his self- control. She submits that there is complete absence of

pre-meditation on the part of the accused and therefore, this case would come within the

ambit of Exception 4 of Section 300 of the IPC meriting lesser punishment for the appellant.

Mrs. Choudhury, therefore, submits that this a case covered under section 304 part-II of the

IPC.

Page No.# 9/11

25. The learned APP, Assam has also fairly submitted that the evidence of prosecution

witnesses, viz. PWs 2, 3 and 4 supports the argument of the appellant's counsel to the extent

that there is lack of premeditation. The learned APP, however, submits that there was clear

intention to kill and therefore, it would be a case covered under section 304 part-I of the IPC.

26. The fact that the deceased had died a homicidal death on being assaulted by the

accused with a 'dao' is firmly established from the evidence available on record. The

evidence of the eye witnesses PW-2 and 14 appear to be consistent and finds due

corroboration from the testimony of PW-3 and 13 and well as the scientific evidence available

on record. Taking note of such evidence the learned trial court has recorded a categorical

finding holding that the accused had fatally assaulted the victim leading to her death. The

learned counsel for the appellant has also not assailed such findings of the learned court

below. Therefore, the only issue that would call for adjudication in this case is as to whether,

the accused/ appellant deserves a lesser punishment in this case.

27. Evidence on record suggest that the occurrence took place around 10.30 am on the

day of the incident. It has come out from the testimony of PW-2 that around that time ,there

was a quarrel between the accused and the deceased over boundary of land.PW-2 is an eye

witness in this case and her testimony is found to be reliable. The other eye witness PW-14

who had also deposed that the accused was rebuking the victim in filthy language. The

witnesses PWs-3 and 4 had also seen the altercation between the accused and the deceased

just before the occurrence.

28. In a village life, possession over land has always been a sensitive issue and

therefore, it is probable that in a quarrel over land boundary, passion often runs very high.In

the instant case, the gap between the quarrel and the occurrence is very less and the Page No.# 10/11

accused had also surrendered before the Police with the 'dao' soon after the incident. The

prosecution side has not been able to point towards any evidence to show premeditation on

the part of the accused. Under the circumstances, the possibility of the accused being

sufficiently provoked during the quarrel so as to lose his sense of self- control and assault the

victim and her husband with a sharp cutting weapon in a heat of passion cannot be ruled out.

29. Having noted as above, we also find from the post-mortem report that the accused

had dealt multiple blows on the vital parts of the body of the victim with a sharp cutting

weapon causing deep incised injuries. According to the PW-6, the injury Nos 1, 3 and 4 were

grievous.The weapon used is also sharp edge one. We are, therefore, unable to agree with

the appellants counsel that the accused did not have any intent to kill.

30. In the case of Sukhbir Singh Vs. State of Haryana reported in (2012) 3 SCC

327, the Supreme Court has observed that in order to avail the benefit of Exception 4 of

Section 300, the defense is only required to probabilise that the offence was committed

without premeditation, in a sudden fight in a heat of passion upon a sudden quarrel and the

offender had not taken any undue advantage and had not acted in a cruel or unusual manner.

This exception is based on the principle that in the absence of premeditation and on account

of total deprivation of self control, the offence was committed in a heat of passion, which

normally, a man of sober urges would not resort to.

31. From a careful analysis of the evidence available on record, we are of the opinion

that although the accused had the intent to kill, yet, the assault was the out- come of a

sudden quarrel, made in a heat of passion and without any premeditation. Therefore, we are

of the view that the accused would be entitled to the benefit of Exception 4 of Section 300 of

the IPC.

Page No.# 11/11

32. For the reason stated above, we convert the conviction of the appellant/ accused to

one under section 304 part-I of IPC and sentence him to undergo rigorous imprisonment for

10(ten) years. The fine imposed by the learned trial Court shall, however, remain

undisturbed.

33. The appeal stands partly allowed.

Send back the LCR.

                            JUDGE                                      JUDGE
Sukhamay



Comparing Assistant