Rajen Baruah vs The State Of Assam
2022 Latest Caselaw 1439 Gua

                                                                        Page No.# 1/20

GAHC010027162020




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

                                Case No. : CRL.A(J)/8/2020

            RAJEN BARUAH
            SONITPUR, ASSAM.


            VERSUS

            THE STATE OF ASSAM
            REP. BY PP, ASSAM.


Advocate for the Petitioner   : MR A TEWARI, AMICUS CURIAE

Advocate for the Respondent : PP, ASSAM

BEFORE HON'BLE MR. JUSTICE SUMAN SHYAM HON'BLE MRS. JUSTICE MALASRI NANDI

Dates of hearing : 26.04.2022 & 05.05.2022.

Date of judgment :            05.05.2022.


                                JUDGMENT & ORDER (Oral)

(Suman Shyam, J)

Heard Mr. A. Tewari, learned Amicus Curiae appearing for the appellant. We

have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, Page No.# 2/20

representing the State.

2. This appeal against conviction is directed against the judgment dated

18.07.2019 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case

No.69/2016 convicting the sole appellant Rajen Baruah under Section 302 of the

Indian Penal Code (IPC) for committing the murder of Prasanta Borah and

sentencing him to undergo rigorous imprisonment for life and also to pay fine of

Rs.10,000/- with default stipulation.

3. The prosecution case, in a nutshell, is that the accused Rajen Baruah had

invited the deceased for dinner on 03.06.2014 and at around 9:30 p.m. in that

evening, he had assaulted the victim on his head thereby causing grievous injury on

him. The victim was shifted to the hospital but on the next day, he succumbed to his

injuries.

4. On 04.06.2014, Smti. Malati Borah i.e. the mother of the victim had lodged an

ejahar before the Officer-in-charge of Bihuguri Police Outpost informing the police

about the incident. Upon receipt of the ejahar, Tezpur P.S. Case No.612/2014 was

registered under sections 341/306/511/326/34 of the IPC. The accused and his wife

were both arrested. Upon completion of investigation, charge-sheet was, however,

submitted only against accused Rajen Baruah under Sections 341/326/302 of the IPC.

Since it was a case triable by the Sessions Court, the matter was committed to the

court of learned Sessions Judge, Sonitpur. The learned trial court framed charge

under Sections 342/326/302 of the IPC against the accused. The particulars of the

charge, on being read over and explained to the accused, he had pleaded not Page No.# 3/20

guilty and claimed to be tried. As such, the matter went for trial.

5. There is no eye-witness in this case and the prosecution had relied on

circumstantial evidence brought on record. In order to establish the charge brought

against the accused the prosecution had examined as many as 11 witnesses. Two

witnesses were examined as Court Witnesses. The statement of the accused person

was recorded under Section 313 of the Cr.P.C. whereby he had denied all the

incriminating circumstances put to him. The accused had, in fact, taken the plea of

alibi and had examined one witness (DW-1) in support of his stand. Upon conclusion

of trial, the learned Sessions Judge, Tezpur had passed the impugned judgment

dated 18.07.2019 convicting the accused/appellant and sentencing him as

aforesaid.

6. Assailing the impugned judgment Mr. Tewari, learned Amicus Curiae, has

argued that there is evidence to show that the incident had happened outside the

house of the accused which was an open path without any boundary wall.

Therefore, that place had access to all. There is no eye-witness to the occurrence

and the evidence available on record also does not conclusively establish that it was

the appellant who had assaulted the deceased. Mr. Tewari, therefore, submits that

the prosecution has failed to establish the links in the chain of circumstances so as to

prove the charge brought against the accused beyond reasonable doubt.

Alternately, Mr. Tewari has also argued that since there is evidence to show that there

was a dispute between the accused and the victim regarding sale of a Winger

vehicle, which both of them were operating on partnership basis, it is evident that the Page No.# 4/20

incident, even if held to be true, is the outcome of a quarrel between the parties.

Viewed from that angle also, submits Mr. Tewari, the present is a case falling within

the ambit of Section 304-Part-1 of the IPC.

7. Responding to the above, Ms. B. Bhuyan, learned Addl. Public Prosecutor,

Assam, has argued that from the evidence of PWs-2, 3, 5 and 6 it is conclusively

established that on the date of the incident, the appellant had invited the deceased

to his house for dinner and thereafter, he had fatally assaulted the victim with a blunt

weapon leading to his death. The post-mortem report clearly establishes the

homicidal death of the deceased. Under the circumstances, submits Ms. Bhuyan, the

charge brought against the accused stood fully established from the evidence

brought on record by the prosecution side. Ms. Bhuyan has further argued that

although the accused had taken the plea of alibi, he has failed to establish the same

by adducing cogent evidence. According to the learned Addl. P.P., there is no

evidence available on record so as to bring this case within the ambit of any of the

Exceptions of Section 300 of the IPC. As such, there is no scope for this Court to

interfere with the impugned judgment dated 18.07.2019 passed by the learned

Sessions Judge in this case.

8. We have considered the submissions made by the learned counsel for both

the sides and have also carefully gone through the materials available on record. As

noticed above, the prosecution case is entirely based on circumstantial evidence.

Let us, therefore, examine as to whether the prosecution has succeeded in

establishing the charge brought against the accused beyond reasonable doubt by Page No.# 5/20

adducing circumstantial evidence.

9. The mother of the victim, Smti. Malati Borah, who is also the informant in this

case, was examined as PW-1. This witness has deposed that the occurrence took

place on 03.06.2014 in between 8:00 p.m. and 9:00 p.m. The accused Rajen Baruah

rang up and called her son Prasanta to his house. Prasanta went to the house of

Rajen Baruah. Later on, she came to know from Bubuli Nath (PW-3) and Rashmi Kanta

Nath (PW-6) that her son Dadul alias Prasanta had been assaulted by the accused.

He had fallen down and was lying on the ground. She immediately went there with

her younger son Mridul (PW-5) and saw that her son Prasanta was full of blood and

was not in a postion to speak. She took her son to the Mission Hospital from where he

was referred to GNRC Hospital at Guwahati. Prasanta was taken to GNRC, Guwahati

and was admitted there but on the next day, he died while undergoing treatment at

GNRC Hospital. PW-1 has proved her signature in the F.I.R. as Ext-1. During her cross-

examination, PW-1 has denied the suggestion that the accused did not call up

Prasanta over phone or that she did not hear the accused call.

10. PW-2, Nibha Devi is an important witness in this case. She is a neighbor of the

accused. PW-2 has deposed that on the date of the incident, at about 9:00/9:30 p.m.

when she was watching TV in her house she had heard a commotion coming from

about 100 ft. away. She then came out of her house and went towards the house of

accused Rajen. There she saw Alaka Devi i.e. the wife of the accused was holding

Dadul (victim) and crying. She was saying "Sonai moril, Sonai moril" (Sonai is dying,

Sonai is dying). This witness has also stated that she had seen the accused fleeing the Page No.# 6/20

place by shouting "Sonai-k Marilu" (I have killed Sonai). Then her husband Rashmi

Nath and another person Bubuli Nath went to inform the Gaonburah and the family

members of Prasanta about the incident. The injured was sent to the Mission Hospital

in a tempo. Later on, she had learnt that Prasanta was taken to the GNRC Hospital at

Guwahati where he died while undergoing treatment. The evidence of this witness

remained intact during her cross-examination.

11. PW-3, Bubuli Nath is another important witness in this case. He has also stated

that on the day of the incident at about 9:00 p.m. while he was watching TV he had

heard commotion and came out of his house. He had heard the wife of the accused

shout "Sonai moril"(Sonai is dying). He had seen the wife of the accused holding

Dadul in her arms and shout "Sonai moril". When he went to the place of occurrence

he saw the accused fleeing from that place. He had also seen Dadul in an injured

state with blood oozing out. Then he poured water on his head. He and Rashmi then

informed the Gaonburah and the family members of Dadul. PW-3 has also stated that

the police had seized two pieces of stand of bed vide seizure-list Ext-2 and Ext-2(1)

was his signature. Mat. Ext-1 was the two pieces of stands seized by the police which

he had seen in the Court that day. In his cross-examination PW-3 has denied the

suggestion that he did not state before the I.O. that the accused had fled the scene

but has stated that probably he fled because he was scared that he may be caught

as the occurrence took place near his house.

12. Sri Lila Nath was examined as PW-4. He is a co-villager and is known to both

the accused as well as the victim. He has deposed that on the night of the Page No.# 7/20

occurrence he had heard the accused shouting "Morigol Morigol" (dead, dead) but

he did not know anything else. This witness was declared as hostile witness at the

instance of the prosecution. During his cross-examination by the prosecution PW-4 has

denied the suggestion that because of his family relations with the accused had

deposed falsely before the Court.

13. PW-5, Mridul Borah is the brother of the deceased. He has deposed that on

03.06.2014 at about 9:30/10:30 p.m. Mohan Borah came to his house and informed

that Rajen Borah had killed Prasanta. Around that time, Rashmi (PW-6) and Bubuli

(PW-3) also came to their house and informed that Dadul alias Prasanta has been

killed by Rajen. Then he came to the house of the accused. On reaching there, he

saw that Rajen's wife Alaka Devi held his brother Prasanta on her lap and she was

crying. PW-5 has also stated that he had seen blood oozing out from his brother's

body. Then he along with Chandan Nath, Dulal Borah and Tarun Nath called a

tempo and took Prasanta to the Mission Hospital and from there he was taken to

GNRC, Guwahati. Prasanta died on 05.06.2014 while undergoing treatment at GNRC.

According to PW-5, accused Rajen and Alaka had killed his brother Prasanta. This

witness has further deposed that his brother Prasanta and accused Rajen had

purchased a "Winger" vehicle and was running it on partnership basis for about a

year. After that his brother and the accused had sold out the vehicle and the

occurrence took place on the following day when the vehicle was sold. On the date

of occurrence the accused had come to their house and told them that Prasanta

would have dinner in his house and therefore, he would be late.

Page No.# 8/20

14. PW-6, Rashmi Kanta Nath has also deposed that the occurrence took place

on 03.06.2014 at about 9:00 p.m. At that time, he was watching TV in his house. He

had heard a commotion coming from the house of accused Rajen as both Rajen

and Dadul were quarreling. He came out of the house and saw that Dadul was lying

in the compound of the accused in an injured condition with blood oozing from his

nose. Then Alaka Devi (wife of accused) told him that the family members of Dadul

should be informed. Alaka gave a cycle and he informed the Gaonburah and father

of Dadul. All of them then returned to the house of accused. By that time a tempo

was called and Dadul was taken to Mission Hospital. After half an hour police came

to the house of the accused and enquired about the incident. Police had also seized

two pieces of wooden bed stand from the house of the accused vide seizure-list Ext-2

which bears his signature. PW-6 has also confirmed that he had stated before the I.O.

that accused Rajen was shouting that he had killed Sonai. Immediately he came to

the house of Rajen and saw Sonai (Prasanta) was on the lap of Alaka and she was

asking as to why he killed Sonai. The defence side did not cross-examine this witness

on the aforesaid point. However, during his cross-examination, PW-6 has stated that

since there was "hulusthul" (commotion) he could not say with confidence that it was

Rajen who was shouting by saying that he had killed Sonai.

15. PW-7, Sri Trilochan Nath; PW-8, Sri Chandan Kr. Nath and PW-9, Sri Dulal Borah

are the inquest witnesses and they have proved their signatures in the inquest report

Ext-3. Cross-examination of all these three witnesses were declined.

16. PW-10, Sri Dilip Saikia is the Investigating Officer (IO) of this case. PW-10 has Page No.# 9/20

deposed that on 03.06.2014 he was posted as the Attached Officer at Bihaguri Police

Outpost. On that day, an unknown person from Likhak Gaon had informed the In-

charge of Bihaguri Outpost over phone that an incidence of assault had taken place

in the village. Upon receipt of the said information GD Entry No.41 dated 3 rd June,

2014 was made and thereafter he, along with In-charge Subleswar Deka and an

APBn team went to the place of occurrence. The I.O. has exhibited the GD Entry

No.41 as Ext-4 and also identified the signature of the In-charge Subleswar Deka as

Ext-4(1). On reaching the place of occurrence he had drawn up a sketch map (Ext-5)

and came to know that one Prasanta Borah had sustained injury on being assaulted.

The injured person had already been taken to the hospital for treatment before the

police team had reached the place of occurrence. He had recorded the statements

of the witnesses; seized two pieces of broken wooden stand used for hanging

mosquito nets on a bed in presence of witnesses vide seizure-list Ext-2. Mat. Ext-1 was

the broken wooden stand seized by him. PW-10 has further stated that when he

came back to the Police Outpost along with the seized article he saw accused Rajen

Baruah had already appeared at the Outpost. When he showed the broken wooden

stand to the accused he had confessed of having assaulted the injured person with

the stand. On 04.06.2014, informant Malati Borah (PW-1) had lodged a written ejahar

reporting the incident based on which GD Entry No.41 dated 04.06.2014 was earlier

made in the Outpost and the ejahar was forwarded to the Tezpur Police Station for

registration of a case. On 06.06.2014 one Mahendra Borah had informed the Outpost

in writing that injured Prasanta Borah had breathed his last at the GNRC Hospital on Page No.# 10/20

5th June, 2014. On receipt of the said information GD Entry No.83 dated 6 th June, 2014

was made which is Ext-6. PW-10 has further stated that he had completed the

preliminary investigation and handed over the Case Diary to S.I. Subleswar Deka who

had submitted charge-sheet Ext-7 after collecting the inquest report and post-

mortem examination report. The I.O. has also brought on record the contradictions in

the testimony of PW-4 who was declared as a hostile witness.

17. During his cross-examination, PW-10 has stated that the wife of the accused

was also arrested in this case as she had appeared at the Tezpur Sadar Police Station

out of fear of being assaulted by the public. During his cross-examination the I.O. has

also deposed as to the manner in which the witnesses had recorded their statements

before him.

18. PW-11, Dr. Braja Gopal Das was posted as a Post Graduate (PG) student at the

Gauhati Medical College & Hospital (GMCH), Guwahati in the department of

Forensic Medicine and Toxicology on 05.06.2014 when the dead body of the victim

was brought for conducting post-mortem examination. According to the PW-11, the

following injuries were found in the dead body :-

"Injuries are :

1. Abrasion of size 1cm x 1cm present over left forehead, 1cm above left eyebrow and 4cm away from the midline.

2. Stitch wound of size 2cm in length repaired by two stitches present over the middle of the occipital area. On removal of stitches, a laceration injury of size 2cm x 0.5cm x scalp deep is found.

3. Stitch would of length 1.5 cm, repaired by two stitches present over upper Page No.# 11/20

part of helix of the left ear. On removal of stitches, a lacerated wound of size 1.5cm x 0.4cm x muscle deep is found.

4. Contusion of size 8cm x 5cm is present over right lateral aspect of nape of the neck, 3 cm away from the midline.

5. On dissection, a) a linear fracture of length 5cm is present over left temporal area, 10 cm away from the midline and 3 cm above from the mastoid process, b) a linear fracture of length 6 cm present over right occipital area, 3 cm below the right occipito-parietal area, 3 cm below the right parietal eminence and 5 cm above the right mastoid process, c) a depressed fracture of size 5 cm x 6 cm is present over middle of the occipital area 2 cm below the occipital protuberance.

Over the scalp : Diffuse contusion present over the scalp, Vertebrae all are healthy.

Membrane : Diffuse subdural haemorrhage present over both cerebral hemisphere.

Brain : laceration present over occipital area."

PW-11 has opined that death was due to coma as a result of injury sustained over

head. All the injuries were ante-mortem and caused by moderately heavy blunt

weapon and were homicidal in nature. In his cross-examination by the defence, PW-

11 has clarified that the type of injury found in the dead body is rarely caused by

falling from a bike or a bicycle and that by using the expression "moderately heavy"

they understood 'lathi and iron rod etc'.

19. Sri Mon Mohan Borah was examined as a Court Witness (CW-1). According to

PW-5, CW-1 was the first person who had come to their house and informed his family

members about the incident. CW-1 has deposed that he was the driver of a Bolero Page No.# 12/20

vehicle owned by Atul Boro. The vehicle used to ply on hire. At about 9:00/9:30 p.m.,

on the date of the incidence when he had reached near the house of the accused

he saw a crowd near the house. He also saw under the electrical light of the veranda

that the accused was dragging out Dadul alias Sonai from the house towards the

courtyard. Then he informed the father of Dadul about the incident and again

returned to the house of the accused. CW-1 has also stated that while he saw the

accused dragging Dadul out, his wife had asked as to why he was assaulting Dadul.

In the meantime, many villagers had gathered at the place of occurrence. During his

cross-examination, CW-1 has denied the suggestion that he had not seen the

incident as deposed. This witness could not be shaken in his cross-examination.

20. The wife of the accused viz., Smti. Alaka Baruah was examined as CW-2.

According to this witness, the incident took place on 03.06.2014 at about 9:00/9:30

p.m. in front of their house. At that time, she was at home. It was a Tuesday. So, her

husband went to the weekly market. On his return from the market, he had gone out

to the house of one Phani. At that time, she was sleeping with the baby. Then she

heard some sound outside the house. She came out of the house and saw 2/3

persons were talking. Amongst them Prasanta Borah was there. However, she did not

recognize the other two persons. When she had gone forward she had noticed that

two persons were running from their house and saw that Prasanta Borah was lying

there. Then she asked him as to who had assaulted him but Prasanta did not give any

reply. Thereafter, neighbours Nibha Devi (PW-2), Bubuli Nath (PW-3) and Rashmi Nath

(PW-6) came there. Gradually some more persons had gathered and told that they

had killed the victim. Then her husband and the local people chased him. On the Page No.# 13/20

advice of a neighbour she as well as her husband had fled the scene. CW-2 has also

deposed that her husband had jointly purchased one vehicle along with the

deceased Prasanta Borah which was sold out on the previous day of the incident.

Her husband and Prasanta had equal shares in the vehicle. According to her, a

dispute took place between her husband and deceased. The witness has denied

that in order to save her husband she has falsely deposed before the court by

suppressing the material fact.

21. The defence side had examined one witness viz., Sri Biman Haloi as DW-1. It

appears that DW-1 was an employee of the APDCL and he had come to the court

along with the list of consumers of "Likhak gaon". According to the consumer list

exhibited by DW-1 as Exts-D(1) to D(10) containing the names of the consumers of

Likhak village, Bhalukekhowa, Pithakhowa and Komarchuburi Gaon the name of

accused Rajen Baruah was missing. DW-1 has deposed that generally electricity

connection is given in the name of the owner of the land.

22. Based on the evidence available on record the learned trial court had

reached the conclusion that it was none other than the accused Rajen Baruah who

had assaulted the victim on the vital parts of his body resulting into his death. After a

careful examination of the materials available on record, we do not find any good

ground to draw a different conclusion in the matter. We say so for the reasons

mentioned hereunder.

23. First of all, it may be noted herein that the fact that the deceased had

suffered a homicidal death due to the injuries received by him on the head by a Page No.# 14/20

moderately heavy blunt object is well established from the evidence of PW-11, who

had conducted the post-mortem examination on the dead body. PW-11 has

remained firm during his cross-examination and maintained that the injuries on the

dead body were inflicted by a weapon such as 'lathi or iron rod etc.' The wooden

bed stands which were used by the accused to inflict injury on the victim had been

seized by the I.O. vide seizure-list Ext-2 and were also produced before the court as

Mat. Ext-1.

24. It appears from the evidence available on record that Sonai and Dadul are

the nicknames of the victim Prasanta. Witnesses PWs-2, 3 and 6 have spoken in one

voice by saying that soon after the incident, when they came to the place of

occurrence they had seen that Dadul was lying in the compound of the accused in

an injured condition and blood was oozing out from his body. They had also seen

Alaka Devi i.e. the wife of the accused present there. According to PW-2, she was

crying by holding Dadul in her lap which is also the version of PW-3. The evidence

adduced by PWs-2, 3 and 6 not only corroborates each other's version but also finds

due corroboration from the testimony of CW-1 who had also seen accused Rajen

drag the victim from inside his house to the courtyard.

25. According to CW-1, the accused is not an original inhabitant of village

Likhakgaon but he belongs to Kalitagaon. PW-4 has also stated that the accused was

constructing his house. Therefore, if the accused was not an original resident of village

Likhakgaon and if he was still in the process of constructing his house then it is possible

that his name may not appear in the list of consumers produced by DW-1. However, Page No.# 15/20

that by itself would not be sufficient to establish that there was no electricity in the

house of the accused on the date of the occurrence so as to impeach the credibility

of CW-1.

26. PWs-1 and 5 have both stated in their deposition that the victim was invited to

have dinner in the house of the accused on the day of the occurrence and that is

how he had gone to the house of the accused. This statement of the aforesaid

witnesses have remained unshaken during their cross-examination. From the

aforesaid evidence brought on record, it is clearly established that on the date of the

incident, the accused had invited the victim to his house for dinner and when the

victim went there in the evening hours, in all probability a quarrel took place between

them whereby the accused had assaulted the deceased with a wooden stick (lathi)

thereby inflicting grievous injuries upon him. Although the victim was rushed to the

hospital for treatment, yet, he had succumbed to his injuries after two days. Therefore,

it is evident that it was none other than the appellant who had assaulted the victim

on his head leading to his death.

27. In so far as CW-2 is concerned, we have already noted that she was also an

accused but not sent up for trial due to want of evidence against her. CW-2 is the

wife of the appellant/accused. While deposing before the court CW-2 had made an

attempt to project a different picture by stating that her husband was not present at

home at the time of the occurrence and 2/3 other unknown persons were possibly

responsible for the incident. Such stand of CW-2, recorded for the first time before the Page No.# 16/20

court and which does not find support from the materials available on record, cannot

be relied upon. The defence side also did not lay the foundation during the cross-

examination of the prosecution witnesses to project that someone else was

responsible for the occurrence. Moreover, the fact that the accused had fled the

scene immediately after the occurrence is also firmly established from the evidence

brought on record. If the appellant/accused was really innocent then we do not

understand as to why, instead of asking for help and taking the victim to the hospital,

he should flee the place of occurrence and surrender in the police station. Such a

conduct of the accused in fleeing the place of occurrence soon after the incident is

a behavior, which, in our considered opinion, is consistent with the prosecution story

that it was the accused who had assaulted the victim.

28. By referring to the evidence of prosecution witnesses, more particularly PWs-3,

5 and CW-1, Mr. Tewari has made an attempt to impress upon this Court that there

are material contradictions in the versions of these witnesses making their testimonies

untrustworthy. On a careful reading of the testimonies of these witnesses we also find

that there are some variance in their versions regarding the manner in which the

victim was called to the house of the accused for dinner and also as to the manner in

which CW-1 had informed the family members of the victim following which they had

reached the place of occurrence. However, these variance/differences in the

version of the witnesses do not take away anything from the fact that the incident

took place in the house of the accused and the victim was found lying in an injured Page No.# 17/20

condition in the lap of the wife of the accused (CW-2). There is also nothing to dispute

that soon after the occurrence the accused had fled the place and surrendered

before the Police Station. Therefore, we are of the opinion that such minor

contradictions in the testimony of these witnesses would not have any material

bearing in the outcome of this proceeding. In other words, the inconsistencies in the

testimonies of PWs-3, 5 and CW-1 does not establish any inveracity in the prosecution

story.

29. Having held as above, the only issue that would now fall for consideration of

this Court is as to whether the present is a fit case for conversion of the conviction of

the accused from Section 302 IPC to one under Section 304 Part-I/II of the IPC. As

noted above, the learned Amicus Curiae has vociferously argued that the incident is

the outcome of a quarrel between the accused and the deceased regarding sale of

a vehicle which was jointly purchased by them. The incident also took place on just

one day after the vehicle was sold. Therefore, submits Mr. Tewari, it is clear that the

accused had assaulted the victim out of grave and sudden provocation. In support

of his above argument, Mr. Tewari has relied upon the decision rendered in the case

of Nabajyoti Rangai vs. State of Assam and another, reported in 2021 O Supreme

(Gau) 324.

30. In the case of Nabajyoti Rangai (supra) relied upon by Mr. A. Tewari, this Court

had considered the law laid down by the Hon'ble Supreme Court in case of Stalin vs. Page No.# 18/20

State represented by the Inspector of Police reported in (2020)9 SCC 524 pertaining to

the Exception No.IV of Section 300 of the IPC as well as in the case Sukhbir Singh vs.

State of Haryana and others reported in (2002) 3 SCC 327 and held that in order to

avail the benefit of Exception IV of Section 300 of the IPC the defence is only required

to probabilise that the offence was committed without premeditation, in a sudden

fight and in a heat of passion, upon a sudden quarrel and also the fact that the

offender had not taken any undue advantage and had also not acted in a cruel or

unusual manner. The burden on the accused to establish that the case comes under

Exception IV of Section 300, therefore, is one that is applicable in a civil proceeding.

31. Coming to the facts of this case, as can be seen from the observations made

herein above, on the night of the incident the deceased had gone to the house of

the accused to honour an invitation of dinner extended by the accused. Thereafter, it

appears that there was a quarrel between the two. The fact that there was a

commotion around the time of the incident is not only apparent from the ejahar

dated 04.06.2014 but the same is also well established from the testimony of PWs-2

and 6 who had heard the commotion and had come out of their house. It is also

apparent that the assault made on the deceased person was with a blunt weapon,

which is the bed stand used for putting up mosquito net. If the accused had any prior

plan to assault the deceased then he would not have invited the deceased to his

house to have dinner nor would he use a bed stand to assault the victim. The above

conduct of the accused, in our view, clearly indicates the absence of pre-meditation

on his part. Rather, as noted above, we are convinced from the evidence available

on record that when the victim had come to the house of the accused to have Page No.# 19/20

dinner, an altercation took place between them giving rise to a commotion which

was also heard by the neighbours. In all probability, during the altercation, the victim

had sufficiently provoked the accused prompting him to take the bed stand and

assault the victim on his head. Thereafter, the accused had not only fled the scene

but had also surrendered before the Police Station. There is nothing on record to show

that after assaulting the victim the accused had acted in a cruel manner or had

taken undue advantage of the situation. Under the circumstances, we are of the

considered opinion that the present case would come within the ambit of Exception

IV of Section 300 of the IPC. However, considering the nature of injuries inflicted upon

the victim on the vital parts of his body, we are of the opinion that there was intention

on the part of the accused to cause death to the victim. As such, we find force in the

submission of Mr. Tewari that the present is a fit case where the conviction of the

accused is liable to be converted to one under Section 304-Part-I of the IPC.

32. We accordingly set aside the conviction of the accused/appellant under

Section 302 of the IPC and convict him under Section 304-Part-I of the IPC.

Consequently, we award the sentence of rigorous imprisonment for 10 (ten) years

upon the accused/appellant, which period would stand adjusted against the jail

sentence, if any, already served by the appellant in connection with this case.

In so far as the fine imposed by the learned trial court is concerned, the same

would remain unaltered.

The appeal stands partly allowed.

Before parting with the record, we extend our appreciation to the services Page No.# 20/20

rendered by Mr. A. Tewari, learned Amicus Curiae and recommend that the Registry

may make arrangement for payment of necessary remuneration to the learned

Amicus Curiae as per the existing norms.

Send back the LCR.

                                     JUDGE                  JUDGE

T U Choudhury/Sr.PS




Comparing Assistant