CRL.A(J)/13/2019
2023 Latest Caselaw 730 Gua

                                                                           Page No.# 1/15

GAHC010002842019




                        THE GAUHATI HIGH COURT AT GUWAHATI
           (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                             PRINCIPAL SEAT AT GUWAHATI


                             Criminal Appeal No. 13 (J) of 2019


            Sri Chandan Dey @ Kiran,
            S/o Late Rabi Dey,
            R/o Jhulan Pool Siva Path,
            P.S.- Lumding, District-Hojai (Assam),




                                              .....................Appellant.


                 -Vs-


            State of Assam
            Represented by the Public Prosecutor, Assam




                                              ...............Respondents.

Advocates for the appellant: Ms M Barman,

Advocate for the respondent: Ms S Jahan, APP, Assam.

                                                                                  Page No.# 2/15

                                            BEFORE
                    HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
                        HON'BLE MRS. JUSTICE MALASRI NANDI


Date of hearing              :      20.02.2023.


Date of judgment             :      24.02.2023



                                 JUDGEMENT AND ORDER (CAV)

(Malasri Nandi, J.)

Heard Ms M Barman, learned counsel appearing as Amicus Curiae on behalf of the

appellant and Ms S Jahan, learned Additional Public Prosecutor appearing on behalf of the

State of Assam

2. This appeal has been preferred by the accused appellant against the Judgment and

Order dated 14.11.2018, passed by the learned Additional Sessions Judge, Sankardev Nagar,

Hojai, in connection with Sessions Case No. 17/2018, whereby the accused appellant was

convicted under Section 302 IPC and sentenced to undergo Rigorous Imprisonment for Life

and to pay a fine of Rs. 10,000/- in default stipulation.

3. The brief facts of the case is that the informant Smt Sandhya Rani Dey lodged an FIR on

08.07.2017, before the Officer-In-charge, Lumding Police Station, stating inter alia that on the

same day, at about 01:00 am (midnight) his son, the accused appellant picked up a quarrel

with her husband, i.e., his father over some domestic issues and subsequently, assaulted him

and killed him by strangulation.

4. On receipt of the complaint, a case was registered vide Lumding PS Case No. 124/2017, Page No.# 3/15

under Section 302 IPC and the investigation was commenced. During investigation, the

Investigating Officer visited the place of occurrence, recorded the statement of the witnesses,

the inquest on the deadbody of the deceased was conducted and then the dead body of the

deceased was forwarded to Nagaon Civil Hospital for Post-Mortem Examination. After

completion of investigation, charge sheet was submitted against the accused/appellant under

Section 302 IPC, before the Court of learned JMFC, Hojai. As the offence under Section 302

IPC is exclusively triable by the Court of Sessions, the case was committed accordingly.

5. During trial, the charge was framed by the trial Court under Section 302 IPC, which was

read over and explained to the accused appellant, to which he pleaded not guilty and claimed

to be tried.

6. To substantiate the case of the prosecution, eight witnesses were examined and marked

five exhibits. After completion of trial, the statement of the accused/appellant was recorded

under Section 313 CrPC wherein incriminating materials found in the evidence of the

witnesses were put to him to which he denied the same. It is further stated that he has been

falsely implicated in the case. After hearing the arguments advanced by the learned counsel

for both the parties, the accused was convicted under Section 302 IPC, as aforesaid.

7. Learned Amicus Curiae at the very outset submits that she does not want to argue the

matter with regard to the conviction of the accused appellant. But in the present case, from

the statement given by the prosecution witnesses, it is borne out that there was no intention

on the part of the accused appellant to kill his father. She further submits that on the fateful

day, i.e. on 08.07.2017, when the incident took place, the appellant had come to his house in

a drunken state and without there being any pre-meditation on his part, he under the heat of Page No.# 4/15

passion assaulted his father, who was about 80 years of age and a paralytic patient, lying on

the bed was weak and sick, and could not obstruct his son, which resulted his death. It is

further submitted by the learned Amicus Curiae that in view of the said fact, the case of the

accused appellant does not in any manner come within the ambit of Section 302 IPC, rather it

falls under Section 304 Part-II IPC.

8. Per contra, learned Additional Public Prosecutor has admitted that on the basis of the

evidence of the witnesses, it appears that there was no intention on the part of the

accused/appellant to kill his father, however, the deceased was a paralytic patient and he was

80 years of age and bedridden. He was not in a position to move. The accused confined the

deceased in the room, bolted the room from outside and assaulted his father, which is

considered to be in a cruel manner. Under such backdrop, the trial Court has rightly convicted

the accused appellant, under Section 302 IPC, which does not require any interference by this

Court.

9. We have considered the submissions of learned counsel for the parties. We have also

gone through the judgment of the trial Court as well as the documents available in the record

of Sessions Case No. 17 of 2018.

10. PW-1 is the informant, who is the wife of the deceased and the mother of the accused.

From her deposition, it reveals that on the date of occurrence, at about 12:00 am (midnight),

the appellant assaulted her and her daughter (PW-2) and then they fled away from their

house and the appellant threw a 'dao' aiming at them. At that time, her husband (deceased)

was at home. He was sleeping in a room, but accused assaulted him with lathi, rod etc. Her

husband made hue and cry. Some neighbours came to the spot, but they did not go near to Page No.# 5/15

the accused as he was holding a 'dao' in his hand. After some time, she entered into the

room of her husband but she found him dead. Then she informed Police. Police came and

arrested the accused.

11. In her cross-examination, PW-1 replied that her husband was taking treatment for last

2 years and he could not move freely. Her husband was about 80 years of age. He was a

Pujari in a Shiv Mandir. On the night of occurrence, the accused started quarreling with her

and her daughter. But PW-1 admitted that she did not state before the Investigating Officer

that the accused appellant assaulted her husband with rod and lathi. PW-1 also admitted that

she did not mention in the FIR and stated before the IO that the accused appellant was

holding a 'dao' in his hand at the relevant time of incident.

12. PW-2 is the daughter of the informant and the deceased and sister of the accused

appellant. She deposed before the Court that on the relevant date of incident, at night, she

was at home along with her parents. Then the accused/appellant came home and he started

to abuse them. He took a knife. Then they came out from the house. But her father was at

home as he was sick. Later on, her brother killed his father by strangulating his neck. After

some time, they came back home and found that her father was lying dead in his bed.

13. In her cross-examination, PW-2 replied that the accused appellant was a truck-driver.

He used to drink alcohol. On the night of occurrence, he was not drunk. They were in doubt

that the accused appellant had killed his father by strangulation.

14. PW-3 is a witness on inquest. He was present when inquest was conducted on the dead

body of the deceased.

15. PW-4 is the neighbour of the informant as well as the deceased and the accused.

Page No.# 6/15

According to him, on the date of incident, at about 12/12:30 am, at midnight, one Papu Singh

came to their house and informed that accused/appellant had assaulted his father, i.e., the

deceased. Thereafter, he along with some other neighbouring people went to the house of

the informant. The mother of the accused, the informant and her daughter were standing in

front of their house and they did not enter into their house out of fear. They heard hue and

cry of the victim/deceased- "Don't kill me Baba (son)". The door of the room in which the

victim was being assaulted was closed from inside. He asked to open the door, but accused

did not open it. The mother and sister of the accused also tried to open the door, but they

failed. In the early morning, the accused came out from the room and they informed Police.

They caught him and handed him over to the Police. This witness also stated that they found

the father of the appellant lying dead on his bed.

16. In his cross-examination, PW-4 replied that when he went to the house of the

informant, he was accompanied by Papu Singh, the mother and sister of the accused and the

mother of Papu Singh. It was suggested that he did not state before the IO about his

meeting with Papu Singh and he did not tell him what he had stated before the Court.

17. PW-5 is the Medical Officer. He deposed before the Court that on 08.07.2017, he was

working as Medical and Health Officer at Nagaon Civil Hospital. On that day he conducted

Post-Mortem Examination on the dead body of one Rabi Dey, in connection with Lumding PS

Case No. 124 of 2017, on police requisition and found the following.

              i)         No any external injury seen all over the body

ii)    No any ligature mark was seen on deep dissection of abdomen.

iii) Peritoneal cavity is seen filled with dark red blood and spleen was found to be ruptured.

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18. The doctor opined that the death was due to shock as a result of hemorrhage, due to

splenic rupture due to blunt trauma abdomen.

PW-5 has proved the Post-Mortem Report vide Exhibit-2.

19. In his cross-examination, PW-5 replied that in maximum cases of splenic rupture, it is

caused in beating due to dashing on some hard substance and long disease like

haemotological disease. He did not find any external injury on the stomach of the deceased.

20. PW-6 is also a neighbour of the informant. From his deposition, it discloses that the

incident took place in the month of July, 2017, at about 12 to 12:30 am at midnight. He heard

the voice of the victim/deceased that-" don't kill me baba (son)". Then he immediately went

to the house of one Ranjit Mondal (PW-4) and informed him about the incident. Then they

went to the house of the informant. The mother and sister of the accused were standing

outside the house. The door of the room was closed from inside, in which the victim was

being assaulted by the accused/ appellant. They asked the accused to open the door, but he

did not open the door. The next morning, the accused opened the door and at that time, the

local people caught him and handed him over to the Police. The victim was found dead in his

bed, inside the room.

21. In his cross-examination, PW-6 replied that at about 12:00 am midnight, he heard the

sound of the beating and outcry of the victim that "Baba ! (son) don't kill me". It was

suggested that PW-4 did not state the said fact to the Investigating Officer.

22. PW-7 is the Circle Officer of Lanka Revenue Circle at the relevant time of incident.

According to him, on 08.07.2017, he conducted inquest on the dead body of the deceased,

which was identified by his daughter, in connection with Lumding PS Case No. 124 of 2017.

Page No.# 8/15

He prepared the inquest report vide Exhibit-1 in presence of the witnesses.

23. PW-8 is the Investigating Officer. He deposed in his evidence that on 08.07.2017, he

was working at Lumding Police Station. On that day, on receipt of an ejahar, from the

informant at Lumding Police Station, the Officer-In-Charge, Lumding Police Station, registered

a case vide Lumding PS Case No. 124 of 2017, under Section 302 IPC and the same was

endorsed to him for investigation. Accordingly, he visited the place of occurrence. The public

detained the accused/ appellant and they handed him over and he took him in custody. He

also found the dead body of the deceased in the bed in his house. He informed the Circle

officer of the Lanka Revenue Circle to conduct inquest on the dead body of the deceased and

accordingly, inquest was conducted and he sent the dead body to the Nagaon Civil Hospital

for Post-Mortem examination. Thereafter, he recorded the statement of the informant and

other witnesses, drew sketch map and arrested the accused and thereafter, interrogated him.

After completion of investigation, he submitted charge sheet against the appellant under

Section 302 IPC, vide Exhibit-3.

24. Admittedly, in this case, there is no eye-witness to the incident. The accused-appellant

was found inside the room, where the deceased was sleeping. The Medical Officer who

conducted Post-Mortem Examination on the dead body of the deceased, found no any

external injury all over the body, except rupture of spleen. No any weapon of assault was

seized during investigation. According to the informant, i.e., PW-1, the accused was found

with a 'dao' in his hand. PW-2 has stated that when the accused appellant came home, he

took a knife and having seen the same, she and her mother fled away from the place of

occurrence. PW-2 specifically stated that the accused appellant killed her father by

strangulating his neck, but the Medical Officer did not find any ligature mark on the neck of Page No.# 9/15

the deceased. PW-1 stated that the accused assaulted her husband, i.e., the deceased with

lathi and rod. It transpires from the evidence of witnesses that none of them had seen the

accused appellant assaulting his father, i.e., the deceased. But, it is true that the accused

appellant was found inside the room, where the deceased was sleeping on the bed, which

was supported by the neighbour of the informant, i.e., PW-4 and PW-6. It also appears from

their evidence that the door was closed from inside and they asked the accused to open the

door, but he did not open it. On the next day morning, when the accused appellant came out

of the room, he was caught by the neighbouring people and the deceased was found dead on

his bed.

25. Now the question comes, as to whether the act on the part of the appellant constitutes

the offence punishable under Section 302 IPC or Section 304 Part-II IPC!

26. Though the learned counsel for the accused/appellant has fairly submitted that she did

not argue about the finding of the trial Court with regard to the act of the accused appellant,

since we are dealing with a criminal case involving a sentence of life imprisonment, we think

it better to satisfy our judicial conscience with regard to the sufficiency of evidence available

on record, which has achieved the requisite standards of evidence termed in legal glossary as

the proof beyond reasonable doubt and also the approach of the subordinate court in

appreciation of evidence in convicting the accused appellant.

27. In order to appreciate the arguments of the learned counsel as aforesaid, there is a

need to refer to the law on the subject. Hon'ble Supreme Court in Rampal Singh vs. State of

Uttar Pradesh; reported in (2012) 8 SCC 289, in the following paragraphs, discussed

distinction between Section 302 and Section 304 IPC as well as distinction in 304 Clause I Page No.# 10/15

and Clause II as under:-

"10. ............... We are of the opinion that elucidative discussion on the legal principles

governing the distinction between Sections 300, 302 of the Code on the one hand

and Section 304, Part I and Part II of the Code on the other, would be necessary to precisely

answer the questions raised.

11. Sections 299 and 300 of the Code deal with the definition of ''culpable homicide' and

''murder', respectively. In terms of Section 299, ''culpable homicide' is described as an 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 an act is likely to

cause death. As is clear from a reading of this provision, the former part of it, emphasises on

the expression ''intention' while the latter upon ''knowledge'. Both these are positive mental

attitudes, however, of different degrees. The mental element in ''culpable homicide', that is,

the mental attitude towards the consequences of conduct is one of intention and knowledge.

Once an offence is caused in any of the three stated manners noted-above, it would be

''culpable homicide'. Section 300, however, deals with ''murder' although there is no clear

definition of ''murder' in Section 300 of the Code. As has been repeatedly held by this Court,

''culpable homicide' is the genus and ''murder' is its species and all ''murders' are ''culpable

homicides' but all ''culpable homicides' are not ''murders'.

12. Another classification that emerges from this discussion is ''culpable homicide not

amounting to murder', punishable under Section 304 of the Code. There is again a very fine

line of distinction between the cases falling under Section 304, Part I and Part II, which we

shall shortly discuss.

Page No.# 11/15

13. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya and Anr. (1976) 4 SCC

382, this Court while clarifying the distinction between these two terms and their

consequences, held as under: -

In the scheme of the penal Code, ''culpable homicide' is genus and ''murder' its species. All

''murder' is ''culpable homicide' but not vice-versa. Speaking generally, ''culpable homicide not

amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of

this generic offence, the Code practically recognises three degrees of culpable homicide. The

first is, what may be called ''culpable homicide of the first degree'. This is the greatest form

of culpable homicide, which is defined in Section 300 as ''murder'. The second may be

termed as ''culpable homicide of the second degree'. This is punishable under the first part

of Section 304. Then, there is ''culpable homicide of the third degree'. This is the lowest type

of culpable homicide and the punishment provided for it is, also, the lowest among the

punishments provided for the three grades. Culpable homicide of this degree is punishable

under the second part of Section 304."

14. Section 300 of the Code proceeds with reference to Section 299 of the Code. ''Culpable

homicide' may or may not amount to ''murder', in terms of Section 300 of the Code. When a

''culpable homicide is murder', the punitive consequences shall follow in terms of Section

302 of the Code while in other cases, that is, where an offence is ''culpable homicide not

amounting to murder', punishment would be dealt with under Section 304 of the Code.

Various judgments of this Court have dealt with the cases which fall in various classes of

firstly, secondly, thirdly and fourthly, respectively, stated under Section 300 of the Code. It

would not be necessary for us to deal with that aspect of the case in any further detail. Of

course, the principles that have been stated in various judgments like Abdul Waheed Khan @ Page No.# 12/15

Waheed and Others v. State of A.P. [(2002) 7 SCC 175], Virsa Singh v. State of Punjab [AIR

1958 SC 465] and Rajwant and Anr. v. State of Kerala [AIR 1966 SC 1874] are the broad

guidelines and not cast-iron imperatives. These are the cases which would provide precepts

for the courts to exercise their judicial discretion while considering the cases to determine as

to which particular clause of Section 300 of the Code they fall in.

15. This Court has time and again deliberated upon the crucial question of distinction

between Sections 299 and 300 of the Code, i.e., ''culpable homicide' and ''murder'

respectively. In Phulia Tudu & Anr. v. State of Bihar (now Jharkhand) 2007 SC 3215], the

Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of

the terms used by the legislature in these sections, allow themselves to be drawn into minute

abstractions. The safest way of approach to the interpretation and application of these

provisions seems to be to keep in focus the keywords used in the various clauses of these

sections.

16. The Court in Phulia Tudu (supra) provided the following comparative table to help in

appreciating the points of discussion between these two offences :

"Section 299 Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder if the act by which the death is

caused is done-

INTENTION Page No.# 13/15

(a) with the intention of causing death; or

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

(1) with the intention of causing death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused; or

(3) with the intention of causing bodily injury to any person and the bodily injury intended to

be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(4) with the knowledge that the act is so imminently dangerous that it must in all probability

cause death or such bodily injury as is likely to cause death, and without any excuse or

incurring the risk of causing death or such injury as is mentioned above." |

28. The distinction between Section 304 Part I and Part II has been drawn by the Hon'ble

Supreme Court in Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648, in the

following words:

".....For punishment Under Section 304 Part I, the prosecution must prove: the death of the

person in question; that such death was caused by the act of the accused and that the

accused intended by such act to cause death or cause such bodily injury as was likely to

cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the

death of the person in question; that such death was caused by the act of the accused and Page No.# 14/15

that he knew that such act of his was likely to cause death..."

29. In the aforesaid settled legal principles, now we dwell upon the evidence on record in

the instant case. It is an admitted fact to the prosecution that at the time of incident, the

witnesses examined by the prosecution were not present so as to confirm when and how the

deceased died, but from the evidence of PW-1, PW-2, PW-4 and PW-6, it reveals that the

accused/appellant was found inside the room where the deceased was sleeping on a bed.

The door of the room was bolted from outside. Though PWs-1, 2 4 and 6 had made request

to open the door, but the accused/ appellant did not open it. On the next day morning, when

he came out from the room the deceased was found dead on his bed. There was no

explanation from the side of the accused/appellant as to how the deceased died inside the

room where he was present.

30. After analyzing the record, it is evidently clear that there was no pre-meditation on the

part of the appellant. There is no evidence that the appellant made any special preparation

for assaulting the deceased with an intent to kill his father. From the evidence of the

witnesses, it also appears that the accused is a habitual drunkard and there was frequent

quarrel between the accused appellant and his family members. Apparently, it can be

assumed that the accused/appellant in the heat of passion, under the influence of liquor, had

assaulted his father, as a result of which, he died. From the aforesaid proved facts and

circumstances on record, it cannot either be said that the appellant had the intention that

such action on his part would cause the death or such bodily injury to the deceased, which

was sufficient in the ordinary course of nature to cause the death of the deceased.

31. Applying the above settled principle of law, which has been enumerated in the aforesaid Page No.# 15/15

cases, we are of the considered view that it is a fit case for modifying the sentence and the

appellant ought to have been convicted under Section 304 Part-II IPC instead of Section 302

IPC. We accordingly, while maintaining the conviction of the appellant, alter the sentence of

the appellant from Section 302 IPC to Section 304 Part II IPC and sentence him to undergo

Rigorous Imprisonment for 8 (Eight) Years, for committing the offence under Section 304 Part

II IPC and also to pay the fine as directed by the trial Court. The period which he detained in

custody shall be set off from the period of imprisonment imposed on him. The conviction

under Section 302 IPC is set aside.

32. In the result, the appeal is partly allowed, with the aforesaid modification.

33. Send down the LCR.

                                                              JUDGE                   JUDGE




Comparing Assistant