Gauhati High Court
Crl.A./348/2017 on 28 February, 2023
Page No.# 1/22
GAHC010200982017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No.348/2017
Shri Romesh Borah @ Bijupon ..................Appellant
-Versus-
State of Assam & Anr.
............... Respondents
Advocate for the Appellant : Mr. N. Mahajan.
Advocate for the respondent no.1 : Ms. B. Bhuyan, Addl.P.P.
Advocate for the respondent no.2 : Mr. U. Choudhury, Legal Aid Counsel.
Date of hearing : 21.02.2023
Date of Judgment : 28.02.2023
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
HON'BLE MRS. JUSTICE MALASRI NANDI
JUDGEMENT AND ORDER(CAV)
(Michael Zothankhuma, J)
Heard Mr. N. Mahajan, learned counsel appearing for the appellant.
Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor appearing
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for the State/respondent No.1 and Mr. U. Choudhury, learned Legal Aid
Counsel appearing for the respondent no.2.
2. The challenge in this appeal is against the impugned judgment and
order dated 05.10.2016 passed by the learned Sessions Judge, Golaghat
in Sessions Case No. 76/2015, by which the appellant has been convicted
under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment
for life with a fine of Rs.5,000/-, in default, simple imprisonment for one
month.
3. The prosecution case is that an FIR was lodged on 29.04.2015 by
P.W.-2, who is the second wife of the deceased Biren Bora, to the effect
that the appellant, who is the son of the deceased with his first wife PW-8,
had killed the deceased around 8 p.m. on 28.04.2015. In pursuance to the
FIR, Borpathar Police Station Case No. 43/2015 under Section 302 I.P.C.
was registered and confessional statement of the appellant was taken
under Section 164 Cr.P.C. As the I/O found a prima facie case under
Section 302 I.P.C. against the appellant, he filed the charge-sheet.
4. Charge under Section 302 I.P.C. was framed against the appellant on
02.07.2015, to which the appellant pleaded guilty. The same not having
been accepted by the learned Trial court, ten prosecution witnesses and
two defence witnesses were examined by the learned Trial Court.
Examination of appellant was done under Section 313 Cr.P.C. and
thereafter, the appellant was convicted and sentenced in terms of the
impugned judgment and order dated 05.10.2016 passed in Sessions Case
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No. 76/2015.
5. The learned counsel for the appellant submits at the outset, that
there is no denial with the fact that the cause of death of the deceased
was due to action of the appellant in hacking the deceased (his father)
with an axe and the injuries sustained therein, which is recorded in the
evidence given by Dr. Rajiv Kr. Prasad (P.W.-1).
6. The learned counsel for the appellant submits that as his father
(deceased) had abused the appellant and scolded his mother by using
filthy words, besides alleging that the appellant was having an illicit affair
with his mother, i.e. P.W.-8, an argument ensued between them.
Thereafter, as the deceased had punched the appellant and made an
attempt to assault him with a fence post, the appellant had struck him
with an axe.
7. The learned counsel for the appellant submits that there was no pre-
meditation involved in the action of the appellant and the same occurred
due to grave and sudden provocation. There was no intention to kill the
deceased and it was only due to the argument that had erupted between
the appellant and the deceased, that the deceased was struck by the
appellant with an axe. He submits that the evidence of P.W.-5 shows that a
quarrel had taken place between the appellant and the deceased. The
learned counsel for the appellant thus prays that as the incident comes
within the ambit of exception 1 or 4 of Section 300 I.P.C., the appellant
should have been sentenced under Part II of Section 304 I.P.C. In support
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of his submissions, the learned counsel for the appellant has relied upon
the judgments of this Court in- (i) Depon Saikia vs State of Assam
reported in (2013) 2 Gau LR 241 (ii) Manju Lakra vs State of Assam
reported in (2013) 6 Gau LR 222 (iii) Ranjit Tanti vs State of Assam & Anr.
reported in 2018 SCC OnLine Gau 585.
8. Ms. B. Bhuyan, the Additional Public Prosecutor, on the other hand
submits that there is no infirmity with the impugned judgment and order,
as the appellant in his confessional statement under Section 164 Cr.P.C.
clearly admitted the fact that the deceased had died at the hands of the
appellant. Further, the appellant's extra judicial confession, which is
reflected in the evidence of P.W.-5 and P.W.-8 clearly shows that the
appellant is guilty of the offence under Section 302 I.P.C. She further
submits that P.W.-2, who is the second and present wife of the deceased,
was an eye witness to the crime. She also submits that the present case
does not come within the exceptions carved out under Section 300 I.P.C.,
as the appellant had the motive and intention to kill the deceased, keeping
in view the weapon used and the fact that he had struck vital parts of the
body of the appellant, i.e. the neck and belly, more than two times. She
also submits that as relations between the appellant and P.W.-8 (first wife
of deceased) on the one hand and the deceased on the other hand were
not good, there was an enmity on the part of the appellant to cause harm
to the deceased. In support of her submission that the appellant intended
to kill the deceased, regard being had to the weapon used and that the
vital parts of the body had been chosen for the assault, she has relied
upon the decision of the Apex Court in case of Singapagu Anjaiah vs
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State of Andhra Pradesh, reported in (2010) 9 SCC 799.
9. The learned Additional Public Prosecutor submits in the alternative,
that if this Court finds that the appellant's case comes within the ambit of
the exceptions carved out under Section 300 I.P.C., the intention and
knowledge to kill being present in the action of the appellant, the
appellant would have to be convicted and sentenced under the Part-I of
Section 304 I.P.C.
10. Mr. U. Choudhury, learned legal aid counsel for the
informant/respondent No. 2 submits that a perusal of the confessional
statement of the appellant under Section 164 Cr.P.C. and his evidence as
DW-I shows the changing stands of the appellant. The evidence given by
the appellant vis-a-vis the statements made by him under Section 164
Cr.P.C. are contradictory. The fact that the appellant has also changed his
stand with regard to his confessional statement made under Section 164
Cr.P.C. during his examination under Section 313 Cr.P.C., also goes to show
that the exceptions to Section 300 I.P.C. cannot be attracted/considered,
as he is an unreliable witness. He also submits that for the appellant to
take the benefit of the exceptions of Section 300 I.P.C., the appellant
would have to show that the alleged quarrel between the appellant and
the deceased was started by the deceased. However, the evidence
recorded by the learned trial court does not give any indication as to who
had started the alleged quarrel between the appellant and the deceased.
He also submits that the action of the appellant in killing his father was
done by taking undue advantage and acting in a cruel manner. He
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accordingly submits that as the appellant had killed his own father and as
there is a constant change in the appellant's statement vis-à-vis his
evidence, statement under Section 164 Cr.P.C. and examination under
Section 313 Cr.P.C., the Exceptions under Section 300 I.P.C. are not
attracted to this case.
11. We have heard the learned counsels for the parties.
12. The evidence of P.W.-1, i.e. the Doctor, shows that in the opinion of
P.W.-1, the cause of death was due to shock and haemorrhage, as a result
of cut injury in the neck of the deceased. The injuries recorded in the Post
Mortem Report shows that there are two deep cuts in the neck and one
deep cut in the chest, which was caused by a heavy sharp cutting
weapon. The extract of the injury sustained by the deceased in the Post
Mortem Report, which is reflected in the evidence of PW-1, is reproduced
below as follows:-
"External Appearance :
A dead body of a male person about 55 years of age, short black
hairs, fair complexion, average built, both mouth and eyes closed.
Rigor mortis present.
Injuries :-
(i) One deep cut injury with well define margin on the right side of
the neck of dimension- 10 Cm. X 5Cm. X 5Cm. with partial cut of
survical bone No.5.
(ii) One bone deep cut injury in front of neck with well defined
margin of dimension - 3Cm. X 3Cm. X 5Cm. with partial cut of
upper part of sternum.
(iii) One bone deep cut injury in front of chest in left side below the
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clavicular bone of dimension- 3Cm. X 3Cm. X 5Cm. with full
thickness cut of 2nd and 3rd ribs in left side.
Cranum and Spinal Cord :
Scalp, skull and vertebrae are healthy.
Membrane healthy.
Brain and spinal healthy.
Thorax :
Walls, ribs and cartilages :- cut injury of the upper part of the chest
just below the front of neck with partial cut injury of upper part of
sternum.
Cut injury of left side of chest with full thickness cut injury of 2 nd
and 3rd ribs.
Pleurae is ruptured.
Larynx and Trachea :- partial thickness cut injury of larynx and
trachea in its upper part.
Lugs are congested
Peritoneum is healthy.
Heart is healthy.
Vessels are healthy.
Abdomen :- Walls healthy; peritoneum healthy; mouth and pharynx
healthy.
Stomach is healthy and contains undigested food.
Small intestine is healthy and contains semi-digested food.
Large intestine is healthy and contains some faecal matter.
Liver, spleen, kidney and bladder are healthy.
Organs of external genitalia is healthy.
Muscles, bones and joint :- injury as described in 'external
appearance'.
Diseases and deformities are nil.
Fracture as described in 'External appearance'.
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Dislocation nil.
OPINION :
The cause of death is due to shock and haemorrhage as a result of
cut injury of the neck sustained by the deceased. Post mortem
duration is less than 36 hours. According to him, all the injuries
were caused by heavy sharp cutting weapon."
13. The evidence of P.W.-2, who is the second surviving wife of the
deceased Biren Borah, is to the effect that while her husband was
returning home after herding cattle, at around 7.30 p.m. and had reached
the gateway to his house, the appellant had hacked him thrice on his neck
and once on his belly. The appellant then brought the deceased to the
courtyard and laid him there. She also states that she did not know why
the appellant had hacked the deceased. P.W.-2 then went to the house of
PW-5, the VDP Secretary and informed him about the incident. In her
cross-examination, she states that appellant was given a share of the
landed property, but not the full share he was entitled to.
14. The evidence of P.W.-3, who is the nephew of the deceased Biren
Borah, is that while he was in his house he heard a commotion at the
gateway of the deceased Biren Borah's house. When he came out from his
house, he found the dead body of Biren Borah lying on the gate. Further,
as it was a dark night, he did not go there. At this stage, P.W.-3 was
declared a hostile witness by the public prosecutor. In his cross-
examination, P.W.-3 denies the making of any statement by him to the
police, which is to the effect that the VDP Secretary had stated that the
appellant had killed his father with an axe.
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15. P.W.-4, who is the brother of the deceased Biren Borah, states in his
evidence that he was told by P.W.-8 (first wife of the deceased) that a
quarrel had taken place between the appellant and the deceased. He was
made a seizure witness with regard to the axe that had been used in the
crime. P.W.-4 also states in his evidence that P.W.-2 had stated that a
quarrel had taken place between the appellant and the deceased over the
issue of pulling a cow and that the appellant, who was armed with an axe
had hacked the deceased. P.W.-4 also states that there had been regular
quarrels between the appellant and the deceased.
16. The evidence of P.W.-5, who is the VDP Secretary of the village, is to
the effect that P.W.-2 had approached him and informed him that a fight
had started between the appellant and the deceased. Since she could not
stop the fight, she had come to inform him of the same. When he went to
the place of occurrence, he saw the appellant splashing water on the road
with a bucket and on being asked, the appellant told him that he had a
fight with his father. When the appellant was asked by P.W.-5 as to where
his father was, he told PW-5 that he had pulled the deceased into the
courtyard and left him there. In his cross-examination, P.W.-5 states that
P.W.-2 had told him about the quarrel that took place between the father
and the son.
17. P.W.-6 is the elder brother of the deceased Biren Borah, who states in
his evidence that he came to know from P.W.-4 that the appellant had a
quarrel with Biren Borah and that the appellant had killed him with an axe.
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In his cross-examination P.W.-6 states that P.W.-2 and the deceased Biren
Borah were married 12 years ago and that he had driven out his first wife
i.e. P.W.-8 from his house. Thereafter, another house was constructed by
them for P.W.-8. He also states in his cross-examination that the deceased
used to torture the appellant and his mother. Land for cultivation was also
not given to them. Further the deceased had alleged that the appellant
had illicit relation with his mother, i.e. P.W.-8.
18. The evidence of P.W.-7 is to the effect that he was informed by the
VDP Secretary, i.e. P.W.-5, that the deceased had been killed by his son,
appellant. He stood as a seizure witness with regard to the seized axe. In
his cross-examination, he states that the deceased used to torture the
appellant and first wife, PW-8. He also states that he does not know why
the second son of the deceased with PW-8 had committed suicide.
19. The evidence of P.W.-8, who is the first wife of the deceased Biren
Borah, is to the effect that the appellant, who was her son, told her that
as the deceased had rushed upon him with an intention to assault him,
the appellant had assaulted the deceased with an axe to save himself. In
her cross-examination, P.W.-8 states that the deceased used to torture
them and that he made a false allegation that she was having an illicit
relationship with her son, the appellant. In her cross-examination P.W.-8
also states that on the date of the incident, the deceased assaulted her
when the appellant was not at home. When the appellant came home,
P.W.-8 informed him that the deceased had assaulted her, due to which
the appellant went to his father to ask him why he had assaulted P.W.-8.
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Thereafter, the deceased assaulted the appellant and told him that he was
having an illicit affair with P.W.-8. As the appellant could not bear it and as
his father had rushed at the appellant, the appellant killed his father to
save himself.
20. P.W.-9 is the Sub-divisional Judicial Magistrate, Dhansiri, Sarupathar,
who states that he had recorded the confessional statement of the
appellant under Section 164 Cr.P.C., after giving him 24 hours time for
reflection. After all the procedures were followed and the appellant was
informed that he was not bound to make a confession, which could be
used against him and that he could be convicted on the basis of the same,
the appellant made his confessional statement voluntarily. The
confessional statement of the appellant was exhibited as Ext-5 and the
signature of the appellant was also identified.
The confessional statement made by the appellant under Section
164 Cr.P.C. is reproduced herein below-
Earlier, my father served in the Indian Army and after his
retirement in 1997, he returned home. My younger brother,
mother and I lived in our house. After consuming liquor, my father
used to beat my younger brother, mother and me. My father
drove my younger brother and mother out of the house some 7
years ago from today and for that reason, my younger brother
went to my maternal uncle's house and committed suicide there.
Without bringing my mother back to the house, my father married
another woman and brought her home about 6 years ago. Later
as my mother lodged a case against my father, the latter gave 1
bigha land to the former near his house to construct a house
thereon. My mother and I constructed a house on that plot of land
and lived there. My father did not give any share of his pension
amount to my mother. My father did not give us any cultivable
land. Later I went to Hyderabad to work there. I returned home
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from Hyderabad to enjoy Rangali Bihu. One day, I approached my
father seeking landed property from him, but he did not give me
any landed property. On Tuesday last, my father came after
consuming liquor and hurled abuses at me. He also told me that
he would not give me any landed property. Then I asked my
father not to abuse me and I also told him that I would go to
Hyderabad again. My father did not accept me as his son and he
scolded my mother using very filthy words. My father asked me
why I had not married yet. He also told me that I had illicit affair
with my mother. Then, as it enraged me, I went near my father.
Then my father punched me and made attempt to assault me with
a fence post. Fearing that my father would assault me, I went
inside the house. While entering the house, I found an axe on the
door and in a fit of anger, I struck my father on his head with that
axe. Then my father fell down. When I went towards the road, my
father attempted to assault me with stone(s). Then I dealt an axe
blow to my father again. Thereafter, I left that place. Later, I came
to know that my father had died. Thereafter, I appeared at
Barpathar Police Station. I have to say this much only.
21. P.W.-10, who is the I/O of the case, gave his evidence to the effect
that after completing the investigation, charge-sheet was submitted
against the appellant under Section 302 I.P.C.
22. The evidence of the appellant, as D.W.-1, is to the effect that he met
his father, the deceased in the morning when his father was going to the
market. He told his father that he would not be going to Hyderabad again
for work and instead asked for a share of the ancestral land that he was
entitled to. The deceased refused the request of the appellant. The
appellant thereafter went to attend a feast held in a school. When he
returned home in the house of PW-8 in the evening of 28.04.2015, he
found broken household articles and furniture lying scattered. When he
asked his mother who had done the said act, she remained silent.
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However, a minor girl of the family told him that the deceased had
assaulted his mother (P.W.-8). He then ran to his father to ask him about
it, to which his father told him that you have never demanded any article
or land till date and now your mother has instigated you. The deceased
also told him that his mother was an evil woman and asked him why he
hadn't got married yet. The deceased also said to the appellant "Have you
kept your mother as your wife". The appellant then hurled a chair, in
reaction to which his father punched him in the face. Thereafter, a fight
ensued and his father beat him with a fence post. Thereafter, the
appellant went home and no sooner had he reached his gateway, his
father threw stones. The appellant hid himself behind a fence and then his
father, armed with an axe, rushed at him with an intention to kill him.
Thereafter, they were engaged in a tussle due to which his father released
his grip on the axe. The appellant thereafter threw away the axe. His
father thereafter became unconscious and fell on the road. He sprinkled
water on the deceased and took inside. Thereafter, he left for his own
house. In his cross-examination, DW-I denied the suggestion that the
evidence given by him in his examination-in-chief was false.
23. The evidence of D.W.-2 is to the effect that on the day of the
incident, the deceased had assaulted the appellant's mother after entering
the house of P.W.-8. Thereafter, the appellant asked his father as to why
he had assaulted his mother. An altercation ensued due to which the
father died. In his cross-examination D.W.-2 states that he did not witness
the incident.
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24. The appellant in his answer given to Question No.16 under Section
313 Cr.P.C. has admitted the fact that he had given his Confessional
Statement before the SDJM, Dhansiri, Sarupathar under Section 164
Cr.P.C., wherein he confessed to having killed his father by means of an
axe. However, the appellant in his answer given to Question No.18 in his
examination under Section 313 Cr.P.C. has stated that he never made any
Confessional Statement.
The extract of the examination of the appellant under Section 313
Cr.P.C. pertaining to question Nos. 16 and 18 are reproduced below-
Question No.16:- P.W.9 Nur Jamal Haque testified that on
29.04.2015, while he was posted as Sub-Divisional Judicial
Magistrate, Dhansiri, Sarupathar, on that day, you were produced
before him by the I.O. for recording your confessional statement
u/s 164 Cr.P.C., and then he sent you to the judicial custody for 24
hours by giving you a period of reflection and thereafter, he
recorded your confessional statement, Ext-5 on 30.04.2015 and
you confessed before him having killed your father by means of
an axe.
Have you got anything to say in this regard?
Answer:- Yes.
Question No.18:- P.W.10 also testified that on 29.04.2015,
you surrendered at Police Station and then he recorded your
confessional statement and also forwarded you to the Court for
recording your confessional statement and then the Court has
recorded your confessional statement.
Have you got anything to say in this regard?
Page No.# 15/22
Answer :- It is a fact that I surrendered at the P.S. but I
never made my confession.
25. In his evidence the appellant had stated that his father was armed with
an axe with an intention to kill the appellant. However, the appellant in his
confessional statement under Section 164 Cr.P.C., has stated that on entering his
house, he found an axe and in a fit of anger he hit his father with the axe. The
changing stands of the appellant shows that his evidence is not reliable.
However, as the gravity of the crime committed by him would be dawning upon
the appellant, it is plausible that he would be trying to improve his chances in
the Court for getting a favourable decision and thereby making some changes in
his statements. In any event, as held by the Apex Court in the case of Gurmail
Singh and Another vs. State of Uttar Pradesh and Another, reported in
(2022) 10 SCC 684, that in order to make culpable homicide murder, the act
by which death is caused should fall not only under any one or more of clauses
Firstly to Fourthly under Section 300 IPC, but they should also not fall under any
of the five Exceptions to Section 300 IPC.
26. The above being said, the question to be decided is whether there was
any premeditation on the part of the appellant to kill his father. The fact that
they had having been driven out from the father's house along with his mother
and younger brother many years ago is not in dispute. The fact that the
appellant and the deceased could meet amicably whenever the appellant came
home implies that there could not have been any premeditation on the part of
the appellant to kill his father. The only question remaining is with regard to
whether there was any intention on the part of the appellant to kill the
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deceased at the time of occurrence of the incident. The evidence recorded by
the learned Trial Court shows that the deceased used to torture the appellant
and PW-8, his first wife. Further, the evidence suggests that there was a
lingering problem between the appellant and the deceased, with regard to
cultivable land not being given to the appellant by his father. Besides the above
fact, the evidence of PW-5 shows that PW-2 had approached PW-5, as she could
not stop the fight between the appellant and the deceased. Though PW-2 has
not stated anything in her evidence with regard to the fight between the
appellant and the deceased, PW-5 has however stated the same had been told
to him by PW-2. Though the evidence suggests that there was a underlying
problem between the appellant and the deceased, there was no real enmity
between the father and son over cultivable land not being given to the
appellant. However, due to various reasons, as can be culled from the evidence
of PW-8 and the confessional statement of the appellant, a quarrel ensued on
the said date which escalated into a fight, wherein it can be presumed that the
appellant lost the power of self-control during to the fight and thereafter hit his
father with the axe.
27. Section 299, describes ''culpable homicide' 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. From a reading of this provision, emphasis is on the
expression ''intention' or upon ''knowledge'. 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 the Apex Court, ''culpable homicide' is the
genus and ''murder' is its species and all ''murders' are ''culpable homicides', but
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all ''culpable homicides' are not ''murders'.
28. Section 302 IPC provides the punishment for a person who commits
murder, i.e. if the culpable homicide has been done with the intention of causing
death or causing such bodily injury as to the offender knows is likely to cause
death or sufficient to cause death or is likely to cause death.
However, Exception 1 of Section 300 IPC provides instances where
culpable homicide is not murder, if the offender whilst deprived of the power of
self-control by grave and sudden provocation, causes the death of the person
who gave the provocation or causes the death of any other person by mistake
or accident. Exception 4 of Section 300 IPC provides that culpable homicide is
not murder if it is committed without premeditation in a sudden fight in the heat
without the offender of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual manner. In the
case of Gurmail Singh and Another vs. State of Uttar Pradesh and
Another, reported in (2022) 10 SCC 684, the Apex Court has held that in
order to make culpable homicide as murder, the act by which death is caused
should fall not only under any one or more of clauses Firstly to Fourthly under
Section 300 IPC, but they should also not fall under any of the five Exceptions
to Section 300 IPC.
29. In the case of Ajmal vs. State of Kerala, reported in (2022) 9 SCC
766, the Apex Court has referred to another decision of the Apex Court in the
case of Pulicherla Nagaraju vs. State of A.P., reported in (2006) 11 SCC
444, where it has been held that the considerations that should weigh with
Courts, in discerning whether an act is punishable as murder, or culpable
Page No.# 18/22
homicide not amounting to murder, is determining the intention to cause death,
which can be gathered generally from a combination of a few or several of the
following, among other, circumstances; (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of the body;(iv) the amount
of force employed in causing injury; (v) whether the act was in the course of
sudden quarrel or sudden fight or free for all fight; (vi) whether the incident
occurs by chance or whether there was any premeditation; (vii) whether there
was any prior enmity or whether the deceased was a stranger;(viii) whether
there was any grave and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x) whether the person
inflicting the injury has taken undue advantage or has acted in a cruel and
unusual manner; (xi) whether the accused dealt a single blow or several blows.
The Apex Court has held that the above list of circumstances is, not exhaustive
and there may be several other special circumstances, with reference to
individual cases, which may throw light on the question of intention.
30. In the present case what can be seen is that the weapon was picked up by
the appellant. From the Post Mortem Examination it is seen that the blow was
aimed at the vital parts of the body. Not only has the appellant given two deep
cuts in the neck of the deceased, but one bone deep cut injury was also given in
front of the chest. The weapon used was an axe. The Post Mortem Report
shows that the injuries were deep, which implies that considerable force must
have been applied while hitting the deceased. It shows that there was a quarrel
between the parties and that the appellant's act was done in the heat of the
moment.
Page No.# 19/22
31. The evidence given by PW-2 does not speak of there being any quarrel
between the appellant and the deceased. However, the evidence of PW-5, who
is an independent witness, is to the effect that a fight had started between the
appellant and the deceased, as told to him by PW-2. The evidence of PW-6 is
that he came to know from PW-4 that a quarrel had taken place between the
deceased and the appellant. On considering all the above issues, it appears that
a quarrel had ensued between the deceased and the appellant. However, the
question to be decided is whether the use of axe by the appellant on the
deceased coupled with the fact that the injuries were caused in the vital parts of
the body would imply that there was an intention to cause the death of the
deceased by the appellant.
32. In the case of Muthu vs. State, reported in (2009) 17 SCC 433 : AIR
2008 SC 1, it has been held that when in the heat of the moment or in a fit of
anger a person does an act without premeditation, that person must also be
punished, but his punishment should be lesser than that of premeditated
offences. The Supreme Court has observed that it is for this reason that
Exceptions 1 and 5 have been inserted in Section 300 of the Penal Code, 1860.
Exception 4 to Section 300 of the Penal Code, 1860 clearly provides that
culpable homicide is not murder if it is committed without premeditation in a
sudden fight in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner.
33. In the case of Depon Saikia vs. State of Assam, reported in (2013) 2
GLR 241, the Division Bench of this Court had considered the act of an
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uneducated village simpleton belonging to a scheduled caste community, who
had choked his father and inflicted several dao blows on his back which resulted
in the death of his father. The accused in the said case had given an explanation
under Section 313 Cr.P.C. that being blinded by rage against his father, for the
mistreatment of his mother, he was not able to tolerate the constant harassment
of his mother by his father. Out of anger the accused choked his father and
inflicted several blows on his back. The Division Bench held that considering his
rustic background, hailing from a scheduled caste community, it would be
reasonable to hold that the accused was gravely provoked by the aggressive
acts of his father towards his mother which was a continuing act repeated time
and again. The Division Bench thus held that as there was no pre-plan and
premeditation to kill his father and as there was no motive or intention to kill his
father, the Division Bench held that the act of the accused was culpable
homicide not amounting to murder, under the purview of Exception 4 to Section
300 IPC. As such, the conviction was converted under Part-II of Section 304 IPC
and he was sentenced accordingly.
34. In the case of Manju Lakra vs. State of Assam , reported in (2013) 6
GLR 222, the Division Bench of this Court held that the killing of the husband
by the wife fell within the ambit of Section 304(Part-II) IPC, as her action came
within the First Exception to Section 300 IPC. This Court in the above case held
that unprovoked acts of domestic violence, day in a day out, had been building
up inside the accused and that the volcano of resentment erupted on the fateful
evening, when her husband came home in a drunken state and started beating
her up. Thus the accused wife lost her power of self control and reacted by
snatching away the lathi from the hand of her husband and started to beat him
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up, without realizing that he was likely to die.
35. On considering the above facts, we are of the view that the appellant's
case comes under Exception 4 of Section 300 IPC, as the appellant's action was
without premeditation, in the heat of passion, upon a sudden quarrel. However,
the appellant by taking an axe from his home and in inflicting three deadly
blows to the vital parts of his father's body can be said to have the intention to
kill his father. The conflicting stands taken by the appellant in his evidence,
statement under Section 164 Cr.P.C. and his answers to Question Nos.16 & 18
under Section 313 Cr.P.C. goes to show that the appellant is not a reliable
witness/person. The Apex Court in the case of Pulicherla Nagaraju (supra),
has held that the intention of the accused has to be gathered from the weapon
used, the part of the body chosen for the assault and the nature of injuries
caused, etc. In the present case, the appellant had used an axe and had chosen
the neck and chest of his father for inflicting deep blows by the axe. The effect
of the above factors leads us to believe that the appellant intended to cause
death of the deceased. As Exception 4 to Section 300 IPC is attracted to the
facts of the case, the appeal is partly allowed. The conviction under Section 302
IPC is converted to Section 304 Part-I IPC. The appellant is convicted under
Section 304 Part-I and sentenced to undergo R.I. for a period of 10 (ten) years
and fine imposed by the learned Trial Court will remain the same. The conviction
under Section 302 IPC is accordingly set aside. The period already undergone
by the appellant shall be set off from the period of imprisonment imposed on
him.
36. The appeal stands disposed off accordingly. Send back the LCR.
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37. In appreciation of the assistance provided by the learned Legal Aid
Counsel, his fee, as per applicable rates, should be paid by the State Legal
Services Authority.
JUDGE JUDGE
Comparing Assistant
