Sangser Ali @ Samsher Ali @ Laden vs The State Of Assam And Anr
2021 Latest Caselaw 846 Gua

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GAHC010081242019




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

                                 Case No. : Crl.A./161/2019

                SANGSER ALI @ SAMSHER ALI @ LADEN
                S/O- SABDER ALI,
                R/O- VILL.- MANTIR CHAR PART-II, P.O. MUTAKHOWA, PIN- 783323, P.S.
                SOUTH SALMARA, DIST.- DHUBRI, ASSAM.

                VERSUS

                1. THE STATE OF ASSAM AND ANR
                REP. BY THE P.P., ASSAM.
                2:SUKUR ALI
                 S/O- LATE ABUL HUSSAIN
                 R/O- VILL.- MANTIR CHAR PART-II
                 P.O.- MUTAKHOWA
                 PIN- 783323
                 P.S. SOUTH SALMARA
                 DIST.- DHUBRI
                ASSAM

Advocate for the Appellant     : Dr. B. Ahmed,
                                 MR. S DAS

Advocate for the Respondent : Mr. M. Phukan, PP,Assam

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

JUDGMENT & ORDER (ORAL) Date : 08-03-2021 (M.A. Ali, J) Heard learned Counsel, Dr. B. Ahmed appearing for the appellant and learned Addl. Public Prosecutor, Mr. M Phukan for the State/respondent.

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2. This appeal is directed against the judgment and order dated 11-02-2019 rendered by the learned Sessions Judge, Dhubri, in Sessions Case No. 226/2016, whereby, the appellant Sangser Ali @ Samsher Ali @ Laden was convicted u/s 302 IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.10,000/- in default, to suffer rigorous imprisonment for another six months.

3. One Sukur Ali (PW-1) lodged a written report with the Officer-In-Charge of South Salmara Police Station, alleging inter alia, that the appellant Sangser Ali along with seven others came to the house of deceasd Abul Hussain and the appellant Sangsher Ali inflicted a stab injury on the chest of Abul Hussain, thereby caused his death. They also inflicted injury to Nur Islam and Sumar Ali by sharp weapon. Treating the said written report as FIR, police registered South Salmara Police Station Case No. 139/2010 u/s 143/147/148/149/341/326/302 and commenced investigation. In course of the investigation, the I/O recorded the statement of the witnesses u/s 161 CrPC, arranged for treatment of the injured, prepared the inquest report on the body of the deceased, subjected the body to post mortem examination, collected the post mortem report and upon completion of the investigation submitted charge-sheet against the present appellant, Sangser Ali, who eventually stood trial before the learned court of Sessions.

4. During the course of trial, charge was framed against the appellant u/s 302 IPC, to which he pleaded not guilty. In order to substantiate the charge, prosecution examined eight witnesses. One witness was examined by the court as court witness. The appellant took the plea of innocence during his examination u/s 313 CrPC however, did not adduce any defence evidence.

5. The first informant Sukur Ali was examined as PW-2. He deposed that having found the cow of the accused causing damage to the plantations, when the deceased was taking the cow for impounding, accused Sangser Ali came and tried to take away the cow, whereupon, altercation ensued between the accused and the deceased and in course of such altercation, accused went to his house and came back with a dagger and dealt a stab blow on the chest of the deceased. This witness also stated, that hearing commotion, he came out of the house and noticed, that Sangser Ali (PW-6) and Nur Islam were trying to resist the accused and the accused assaulted them too.

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6. PW-2, Habija Khatun deposed that quarrel ensued between the accused and the deceased on the issue of a cow causing damage to the cultivation. She further stated that the accused went to his house and came back within 10 minutes with a dagger and inflicted a stab injury to the deceased. She also stated that Nur Islam tried to apprehend the accused, whereupon, the accused assaulted him and had fled the scene of occurrence.

7. PW-3 testified that a quarrel ensued between the accused and the deceased over the issue of grazing a cow at the cultivation field. Thereafter, the deceased Abul Hussain left for his house, however, in the meantime, the accused also went to his house and came back with a dagger and gave a stab blow on the chest of Abul Hussain, and Abul Hussain died at the spot.

8. PW-4 stated in his evidence, that hearing commotion in the house of the accused, he came out and saw Abul Hussain standing in front of his house and talking with the father of the accused. In the meantime, the accused Sangser came from his house with a dagger and dealt a stab blow on the chest of Abul Hussain. Upon sustaining the injury, Abul Hussain fell down and died at the spot.

9. PW-6 stated that about 8/8.30 AM when he was proceeding towards Montrirchar, he had noticed Abul Hussain (deceased) standing in front of his house. He also stated to have seen accused Sangser arriving there and inflicting injury to the deceased Abul Hussain with a "chaku" (knife). He further stated that when he tried to prevent the accused, he was also assaulted by the accused.

10. Dr. Shibulal Nag, who conducted autopsy on the body of the deceased was examined as PW-5, who found the following injuries on the body of the deceased :-

"One spindle shaped penetrating wound on the upper part of the left side of the chest. The size was 7 inch x 3 inch x 1 inch. The injury was ante mortem."

In the opinion of the doctor, "the death of the deceased was caused by shock, due to profuse bleeding following penetrating stab injury on the upper part of the left side of chest."

11. PW-7, PW-8 and CW-1 were the investigating officers, who investigated the case at different stages. PW-8 stated that on 25-08-2010, at about 9.40 AM, he received a telephonic information from one Babar Ali, to the effect, that one Md. Hussain was killed. On the basis of Page No.# 4/8

the said information, he made the G.D. Entry being G.D. Entry No. 383 dated 25-08-2010 and proceeded to the place of occurrence, where he found the body of the victim. He also stated to have found Nur Islam, Sabder Ali and Sumar Ali (PW-6) in the injured state and sent them for treatment. Rest of the testimony of these three official witness pertains to various steps taken by them during the course of investigation.

12. Taking note of the above evidence brought on record, learned Sessions Judge recorded conviction of the appellant u/s 302 IPC and awarded sentence as indicated above.

13. Dr. B. Ahmed, learned counsel for the appellant submits, that though the victim Abul Hussain met with an unfortunate death due to the injury inflicted by the appellant, he did not have any intention to cause death of the deceased, and as such, conviction and sentence of the appellant for murder u/s 302 IPC cannot be sustained. In view of the fact, that there was no intention on the part of the appellant to kill the deceased, appellant ought to have been awarded with lesser punishment u/s 304 Part-II IPC for committing the offence of culpable homicide not amounting to murder, submits Dr. Ahmed.

14. Learned Addl. Public Prosecutor, Mr. M. Phukan also fairly submits that having regard to the evidence brought on record, showing the absence of any premeditation and that the incident of assault took taken place suddenly at the heat of passion, conviction of the appellant may be converted to one u/s Section 304 Pt.-I IPC.

15. We have considered the submissions made by the learned counsel for both the sides and also perused the record.

16. Upon marshalling the evidence adduced by the prosecution, we find that though, there has been certain minor and insignificant variation in narrating the incident, by the ocular witnesses, the oral testimony of all the ocular witnesses was consistent and coherent on the material fact, that the appellant dealt a stab blow on the chest of the deceased, which ultimately caused his death. We also take note of the oral testimony, more particularly, of the PW-1, PW-2 & PW-3, that the incident of assault was preceded by an altercation/quarrel, which took place between the deceased and the appellant on the issue of a cow causing damage to the crops of the deceased. It is discernible from the evidence of PW-1, that when the deceased detained the cow of the accused and proceeded to impound it, the accused Page No.# 5/8

resisted him and took away the cow, whereupon, the quarrel started. The evidence further shows that previously also some incidence took place between the parties relating to cattle. It is also in the evidence that initially the accused did not have any weapon in his hand when he came to take the cow from the deceased and following the quarrel, he went back to his house and came back with a dagger and inflicted the injury, which, ultimately became fatal. Therefore, the prosecution evidence to the effect, that initially quarrel ensued between the deceased and the appellant, who was unarmed, and in course of the quarrel, the appellant went to his house and came back with a dagger/knife and hit the deceased, shows, that the injury was inflicted at the heat of passion and it was not pre-meditated. Giving a single blow and leaving the place without dealing any further blows also demonstrates that the appellant neither acted in cruel or unusual manner, nor did he take any undue advantage. Therefore, the facts established by the eye witness account, that the incidence of assault was preceded by a quarrel, the accused gave only a single blow at the heat of passion, he did neither take any undue advantage nor acted in cruel or unusual manner, bring the act of the appellant causing death of the deceased, squarely within the purview of Exception- 4 of Section 300 IPC, and as such, the appellant in our considered opinion, shall be liable for lesser punishment u/s 304 IPC, for committing the offence of culpable homicide not amounting to murder. Therefore, the next question is whether the accused/appellant is punishable under Part-I or Part-II of Section 304 IPC.

17. Section 304 IPC reads as under :

"304. Punishment for culpable homicide not amounting to murder.--Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

18. A bare perusal of the above provision would show, that a case falls under the first part of Section 304 IPC, when the death is caused with the "intention to cause death" or with the "intention of causing such bodily injury as is likely to cause death". Whereas, a case would fall Page No.# 6/8

under Pt.-II of Section 304 IPC, when the accused had the knowledge, that his act is likely to cause death, but without any intention to cause death or any intention to cause such bodily injury as is likely to cause death. Therefore, whether a case falls within the purview of Pt.-I or Pt.-II of Section 304 IPC, necessarily depend, upon the "intention" and "knowledge" of the accused at the time of commission of the offence, which, in turn is dependent on the peculiar facts and circumstances of each case. The "intention" and "knowledge" both being mental faculty or state of mind, there may be hardly any occasion to have direct evidence of the mental state, and as such, the court has to infer the mental state, i.e, whether the accused had the requisite "intention" or "knowledge" from the facts and circumstances of the case.

19. The Supreme Court in Chanda @ Chandaram Vs. State of Chattishgarh (2013) 12 SCC 110, while distinguishing between the PartI and Part-II of Section 304 IPC, quoted with approval an earlier decision in Jagriti Devi Vs. State of H.P. reported in (2009) 14 SCC 771 and held in para 18 as under :-

"18. In Jagriti Devi vs. State of Himachal Pradesh[4], it was held that the expressions "intention" and "knowledge" postulate the existence of a positive mental attitude. It was further held that when and if there is intent and knowledge, then the same would be a case under first part of Section 304 and if it is only a case of knowledge and not intention to cause murder by bodily injury, then the same would be a case of second part of Section 304. To quote: "26. Section 299 and Section 300 IPC deal with the definition of "culpable homicide" and "murder" respectively. Section 299 defines "culpable homicide" as the act of causing death:

(i) with the intention of causing death, or

(ii) with the intention of causing such bodily injury as is likely to cause death, or

(iii) with the knowledge that such act is likely to cause death. A bare reading of the section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expressions "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed.

27. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa.

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28. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court."

20. In State of Punjab Vs. Tejinder Singh & Anr. reported in 1995 Supp. (3) SCC 515, on the factual matrix of the case, where only one injury was inflicted on the vital part, i.e., the head and all other injuries were on non-vital part of the body, Apex Court converted the conviction of the appellant from Section 302 to 304 Pt. -I IPC and observed as under :-

" In view of our above findings we have now to ascertain whether for their such acts A-1 and A-2 are liable to be convicted under Section 302 read with Section 34 IPC. It appears from the evidence of P.W. 4 and P.W. 5 that the deceased was assaulted both with the sharp edge and blunt edge of the gandasas and the nature of injuries also so indicates. If really the appellants had intended to commit murder, they would not have certainly used the blunt edge when the task could have been expedited and assured with the sharp edge. Then again we find that except one injury on the head, all other injuries were on non-vital parts of the body. Post-mortem report further shows that even the injury on the head was only muscle deep. Taking these facts into consideration we are of the opinion that the offence committed by the appellants is one under Section 304 (Part I) IPC and not under Section 302 IPC."

21. In the State of Madhya Pradesh -Vs.- Kalicharan reported in AIR 2019 SC 2637, the Apex Court converted the conviction of the accused from 302 to 304 Pt.-I IPC, taking note of the fact that the weapon used by the accused was a "farsa" and he caused the injury on the vital part of the body, i.e., head, which proved to be fatal and the injury was inflicted in course of free-fight.

22. In the instant case, it has been established by the oral testimony of all the ocular witnesses supported by the medical evidence that injury was inflicted on the chest of the deceased being a vital part of the body by a sharp weapon. It was not a case that the injury was inflicted by the accused by whatever weapon found at the place of occurrence. Rather, evidently the accused went to his house and came back with a sharp weapon and inflicted the injury. Thus, having regard to the nature of weapon used in committing the crime and the part of the body selected for causing the injury, though, intention to cause death may not be Page No.# 8/8

attributed to the accused, it cannot be said that the accused did not have the intention to cause such bodily injury as is likely to cause death. Therefore, it is not a case falling under Part-II of Section 304 IPC, where the appellant inflicted the injury only with the knowledge that death is likely to cause and without any intention to cause death or such bodily injury as is likely to cause death. In the facts and circumstances of the case as alluded here-in-before, both the "knowledge" and "intention", i.e., intention to cause such bodily injury as is likely to cause death is attributable to appellant, inasmuch as, the weapon used and the part of the body selected speaks loud and clear, that the appellant, not only had the knowledge but also the intention to cause such bodily injury as is likely to cause death. Therefore, in the facts and circumstances of the case, in our considered view the present case falls under Pt.-I of Section 304 IPC. Accordingly, we convict the appellant u/s 304 Pt.-I IPC and sentenced him to undergo rigorous imprisonment for 10 years. The sentence of fine and default sentence of imprisonment awarded by the learned trial court remains unaltered.

23. In the result, the appeal stands partly allowed and the judgment and order of the learned Sessions Judge convicting and sentencing the appellant u/s 302 IPC stand modified to the extent as indicated above.

24. Send back the LCR.

                                      JUDGE                                       JUDGE




Comparing Assistant