Gauhati High Court
CRL.A(J)/98/2020 on 11 June, 2024
Author: Manish Choudhury
Bench: Manish Choudhury
Page No. 1/18
GAHC010190292020
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRIMINAL APPEAL [J] NO. 98/2020
Md. Nasim Akhtar
..................Appellant
-VERSUS-
The State of Assam
...................Respondent
Advocates :
Appellant : Ms. B. Sarma, Amicus Curiae
Respondent no. 1 : Mr. K.K. Das, Additional Public
Prosecutor, Assam.
Respondent no. 2 : Mr. P. Dutta, Pro bono Counsel
Date of Hearing, Judgment & Order : 11.06.2024
BEFORE
HON'BLE MR. JUSTICE MANISH CHOUDHURY
HON'BLE MR. JUSTICE ROBIN pHUkAN
JUDGMENT & ORDER [ORAL]
[M. Choudhury, J]
This criminal appeal from Jail is directed against a Judgment and Order dated
02.07.2015 passed by the Court of learned Additional Sessions Judge, FTC,
Lakhimpur at North Lakhimpur in Sessions Case no. 184[NL] of 2014. By the
Judgment and Order dated 02.07.2015, the accused-appellant has been
convicted for the offence of murder defined in Section 300, Indian Penal Code
[IPC] and he has been sentenced under Section 302, IPC to undergo rigorous
imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of
fine, to undergo simple rigorous imprisonment for another three months.
2. The investigation was initiated on the basis of a First Information Report [FIR]
instituted by the informant, Musstt. Ambia Khatoon [P.W.1] before the Officer
In-Charge, Bihpuria Police Station on 10.01.2014. In the FIR, the informant
alleged that at around 06-30 p.m. on that day itself, that is, on 10.01.2014, the
accused named therein, who is an elder brother of the informant, killed her
husband, Moubin inside their house by stabbing with a dagger. On receipt of
the FIR, the Officer In-Charge, Bihpuria Police Station registered the same as
Bihpuria Police Station Case no. 11/2014 for the offence under Section 302,
IPC and entrusted the investigation to one Manjit Terang [P.W.7] a Sub-
Inspector of Police attached to Bihpuria Police Station.
3. During the course of investigation, the Investigating Officer [I.O.], P.W.7
recorded the statements of a number of witnesses under Section 161 CrPC. He
also visited the place of occurrence [P.O.], that is, the house of the informant
and prepared a Sketch Map of the P.O. [Ext.-6]. The inquest on the deadbody
of the deceased was conducted at Bihpuria C.H.C. on 10.01.2014 by the Circle
Officer, In-Charge, Bihpuria Revenue Circle, who after the inquest submitted an
Inquest Report [Ext.-5]. Thereafter, the deadbody was forwarded to North
Lakhimpur Civil Hospital for post-mortem examination. The post-mortem
examination on the deadbody of the deceased was performed at North
Lakhimpur Civil Hospital on 10.01.2014. P.W.5, Dr. Manuram Tayeng, who was,
10.01.2014, posted as the Medical & Health Officer-I at North Lakhimpur Civil
Hospital. The Autopsy Doctor [P.W.5] recorded his findings in a Post-Mortem
Examination [PME] Report [Ext.-3]. In the course of investigation, the I.O. had
seized the alleged weapon of assault vide a Seizure List, M.R. no. 01/2014
[Ext.-2] on 11.01.2014 on being allegedly shown by the accused, in presence
of witnesses and also prepared a Sketch Map of the place of recovery [Ext.-7].
After completing investigation into the case, Bihpuria Police Station Case no.
11/2014 [corresponding G.R. Case no. 55/2014], the I.O. [P.W.7] laid the
charge-sheet under Section 173[2], CrPC vide Charge-Sheet no. 147/2014
[Ext.-4] on 30.08.2014 finding a prima facie case well established against
the accused for the offence of murder under Section 302, IPC.
4. On submission of the charge-sheet, the Court of learned Judicial Magistrate,
First Class, Lakhimpur caused production of the accused from Jail custody on
27.10.2014. As the copies were ready, the same were furnished to the accused
following the procedure laid down in Section 207, CrPC. As the offence under
Section 302, IPC is exclusively triable by the Court of Sessions, the learned
Judicial Magistrate, First Class, Lakhimpur committed by case records of G.R.
Case no. 55/2014 to the Court of Sessions, Lakhimpur by an order of
commitment dated 27.10.2014. On receipt of the case records of G.R. Case no.
55/2014, the Court of Sessions registered the same as Sessions Case no.
184[NL]/2014. Thereafter, the case was transferred to the Court of Additional
Sessions Judge [FTC], Lakhimpur ['the trial court', for short] for trial and
disposal.
5. On appearance of the accused before the learned trial court and after hearing
the learned Public Prosecutor and the learned defence counsel and upon
perusal of the materials available in the case records, the learned trial court, on
08.12.2014, framed the following charges :-
That you, on or about the 10.01.2014 at about 06-30 p.m. at
Ward no. 2 of Bihpuria Town under Bihpuria Police Station,
did commit murder by intentionally [or knowingly] causing
the death of Moubin Siekh, the husband of the informant,
Musstt. Ambia Khatoon and thereby committed an offence
punishable under Section 302 of the Indian Penal Code [IPC]
and within the cognizance of the Court of Sessions.
6. When the charge was read over and explained to the accused, he pleaded not
guilty and claimed to be tried. During the course of the trial, the prosecution
side adduced evidence through seven nos. of prosecution witnesses and
exhibited documentary evidence through seven exhibits. After closure of the
prosecution evidence from the prosecution side, the accused was examined
under Section 313, CrPC by putting before him the incrementing circumstances
appearing from the evidence led by the prosecution. When the accused was
asked as to whether he would adduce evidence in defence, he answered in the
affirmative. However, he did not adduce any defence evidence. After hearing
the counsel for the parties and after appreciation of the evidence/materials on
record, the learned trial court finding him guilty for the charge of murder under
Section 302, IPC has convicted the accused and he has been sentenced in the
manner, indicated above.
7. We have heard Ms. B. Sarma, learned Amicus Curiae appearing for the
accused-appellant; Mr. K.K. Das, learned Additional Public Prosecutor for the
respondent no. 1, State of Assam; and Mr. P. Dutta, learned counsel who has
appeared as pro bono counsel for the respondent no. 2-informant.
8. Ms. Sarma, learned Amicus Curiae appearing for the accused-appellant has
submitted that out of the non-official prosecution witnesses, the testimonies of
P.W.1 and P.W.2 are of relevance and significance as they were the only
witnesses who seemed to be present in the vicinity of the place of occurrence
at the relevant time of occurrence. It is contended by Ms. Sarma that both the
witnesses, P.W.1 and P.W.2 seemed to be related and interested witnesses and
as such, their testimonies need appreciation with necessary caution. It is
further submitted that the manner of recovery of the alleged weapon of assault
is also doubtful. Submitting further, the learned Amicus Curiae has submitted
that the charge was only with regard to a single blow. It has emerged from the
testimony of P.W.2 that the deceased was not unarmed at the relevant point of
time. It is contended that from the evidence on record, it can be easily noticed
that the alleged assault was not unilateral. As there were discrepancies on
several points, the accused is entitled to the benefit of doubt. Contending so,
the learned Amicus Curiae has submitted that the impugned Judgment and
Order of conviction and sentence passed against the accused is liable to be
interfered with.
9. Mr. Das, learned Additional Public Prosecutor has supported the Judgment and
Order of conviction and sentence passed against the accused on the premise
that there were no apparent inconsistencies in the testimonies of the two vital
witnesses, that is, P.W.1 and P.W.2. The said two prosecution witnesses were
related both to the deceased and the accused and as such, they cannot be said
as interested witnesses and related witnesses at the same time. It is his
submission that the presence of these two witnesses at the relevant point of
time at the place of appearance was natural. In absence of any other evidence
to a contrary, it is clearly established that it was the accused only who had
assaulted the deceased. The matter of recovery of the alleged weapon of
assault was not challenged by the accused during the course of the trial in any
manner whatsoever. When the incriminating circumstance regarding recovery
of the alleged weapon of assault, the dagger was put to the accused during his
examination under Section 313, CrPC, the accused did not offer any plausible
explanation. As the prosecution has been able to lead evidence to prove the
guilt beyond the reasonable doubts, the Judgment and Order of conviction and
sentence needs no interference, meaning thereby, the appeal is bereft of any
merits.
10. Mr. Dutta, learned counsel who has appeared as pro bono counsel on behalf
of the respondent no. 2-informant has submitted that there is nothing in the
evidence wherefrom an inference can be drawn that the informant-wife had
implicated her own elder brother on false accusation. He has adopted the
submissions advanced by the learned Additional Public Prosecutor on the behalf
of the State.
11. We have given our due consideration to the submissions advanced by the
counsel for the parties and have also gone through the evidence/materials
including the testimonies of the prosecution witnesses and the documentary
evidence, available in the case records of Sessions Case no. 184[NL]/2014, in
original.
12. Having heard the counsel for the parties, it has emerged that out of the
prosecution witnesses, the evidence of the informant-P.W.1 is of vital import
and significance as she was one of the two witnesses, who were present at the
relevant time in the vicinity of the place of occurrence. The place of occurrence
[P.O.] was the house of the father [P.W.2] of the informant as well as the
accused.
13. In her evidence-in-chief, P.W.1 stated that the accused is her own elder
brother and the FIR [Ext.-1] was lodged by her against the accused. As regards
the incident, P.W.1 deposed to the effect that the incident took place at around
05-30 p.m. on 10.01.2014 on the road behind their house. P.W.1 stated that
there was a prior incident on that day as in the morning hours on that day, the
accused assaulted her husband. Though she got an Ejahar written as regards
the said incident of assault, she did not lodge the same at the Police Station. In
the evening hours, the accused came to the room where the informant and her
husband used to live. The room was situated in front of her parental house.
When she saw her elder brother, she made a query to him as to why he
assaulted her husband in the morning. In response, the accused chased her in
order to assault. As she fell down while running, she raised hue and cry. Then
the accused ran away from there. But on the way, he met her husband. Then
the accused assaulted her husband with a dagger. Witnessing the same, she
ran towards her husband. She saw the accused and her husband standing face
to face. Seeing her, the accused left the place. Then, she hold her husband as
he was about to fall down on the ground. She noticed that blood was oozing
out from the chest of her husband. Thinking that her husband was dead, she
started screaming. Hearing her screaming, her father [P.W.2] came near her
and held her husband. Her father [P.W.2] also raised alarm. Then, she leaving
her husband with her father [P.W.2], went to the Police Station. Her wearing
apparels were already strained with blood flowing out of the injury of her
husband. P.W.1 further stated that her husband was taken to a hospital at
Bihpuria by a '108' Ambulance from the Police Station. But her husband
breathed his last, in the meantime.
14. During cross-examination, P.W.1 stated that her elder brother, that is, the
accused used to live separately whereas she used to live with her father
[P.W.2]. P.W.1 stated she got married after a love affair and the accused did
not accept the marriage. P.W.1 further stated that her father's [P.W.2] land
was yet to be divided. As regards her husband, P.W.1 stated that he was a
driver in Saudi Arabia. After their marriage on 03.09.2011, he went to his
workplace only once. Later on, after returning from Saudi Arabia, he did not
return. Narrating about the earlier incident in the morning, P.W.1 stated that it
was at around 08-00 a.m. the accused assaulted her husband. She stated that
she saw the dagger at the time of taking it out and it was stained with blood.
15. P.W.2, the father of the accused and the father-in-law of the deceased,
corroborated the testimony of P.W.1 by deposing that it was at around 06-
00/06-30 p.m. on 10.01.2014, the incident had occurred. He stated that he
was in home at that time. Hearing hue and cry from the direction of the road
beside the house, he came out and saw that the accused and his son-in-law,
were entering the backside of the house through a narrow path. Then, he also
went to the backside. He saw an iron pipe in the hand of his son-in-law with
the accused. Then, he went forward to resist his son-in-law, but he was
pushed down. P.W.2 testified about the presence of his daughter, that is, the
informant-P.W.1 with him at the place of occurrence. P.W.2 testified that he
the informant-P.W.1 holding her husband and heard her screaming that a
murder was committed. He corroborated the testimony of P.W.1 by testifying
that holding his son-in-law, who became unconscious, he sat down on the
ground and sent her daughter, that is, the informant-P.W.1 to the Police
Station. P.W.2 also deposed about the ambulance and presence of Police
personnel at the place of occurrence with his daughter. He also stated about
taking the injured son-in-law to the hospital. He testified that he saw his son,
the accused and his son-in-law, the deceased entering into the narrow path
and at that time, he did not see presence of any other person. When cross-
examined, P.W.2 stated that there was darkness at the time of the incident. He
stated that at the time of the incident, only he, his daughter [P.W.1] and his
son-in-law were present in the house. He had, however, stated that he did not
see the commission of murder. It was his daughter [P.W.1], who stated to him
that the murder was committed.
16. P.W.3 is a son of P.W.2. He is an younger brother of the accused and an elder
brother of the informant. In his testimony, P.W.3 stated that when the incident
took place in the evening hours of 10.01.2014, he was not present as he went
to work. He corroborated the version of the informant [P.W.1] on the point that
in the morning hours on 10.01.2014, a quarrel took place between his elder
brother, that is, the accused and his brother-in-law, that is, the deceased.
P.W.3 further deposed that before he left home for work, he told both of them
not to fight. Later on, after coming back home from work, he saw gathering in
the house. When he asked the informant-P.W.1 finding her crying, it was told
to him that the accused had killed her husband. In cross-examination, P.W.3
reiterated that he did not see the occurrence.
17. From the testimonies of the afore-mentioned 3 [three] prosecution witnesses,
it is established that the deceased was assaulted inside the premises belonging
to P.W.2, where the informant-P.W.1, her husband [the deceased] and her
father [P.W.2] used to reside together with the accused, but in separate
houses. The accused also used to reside in the same house premises. The
accused being closely related to the prosecution witnesses, P.W.1 and P.W.2,
his identification was not in doubt though the occurrence took place in the
evening hours. P.W.1 was categorical in her testimony that she saw the blood
stained dagger when it was being taken out. She had also categorically stated
that the injury was on the chest of her husband and blood was oozing out of
that injury. As a result of the assault, when her husband was about to fall
down on the ground at that time, she held her husband. As her father [P.W.2]
reached the place of occurrence at that time, he [P.W.2] then held the injured,
who became unconscious in the meantime, while her [P.W.1] to inform at the
Police Station about the incident. The testimony of the two prosecution
witnesses, P.W.1 and P.W.2 to the effect that the accused was present at the
place of occurrence was not challenged in any manner by the accused,
meaning thereby, the testimony of these two prosecution witnesses on that
point was not shaken.
18. When in the backdrop of such testimonies of P.W.1 and P.W.2, the medical
evidence which is led by the prosecution through the testimony of the Autopsy
Doctor [P.W.5] and the findings recorded in the PME Report [Ext.-3] are
examined, the medical evidence is found to have corroborated the ocular
evidence of P.W.1 and P.W.2. The post-mortem examination on the deadbody
of the deceased was performed at the North Lakhimpur Civil Hospital at around
02-00 p.m. on 10.01.2014 by P.W.5, Dr. Manuram Tayeng who was serving as
the Medical & Health Officer-I, North Lakhimpur Civil Hospital on that day. In
his testimony, P.W.5 stated that he found a lacerated injury of 2 inches over
the nipple of the left side of the chest. He opined that all the injuries suffered
by the deceased were ante-mortem in nature. He deposed that in his opinion
recorded in the PME Report [Ext.-3] exhibited by him, he reported that the
cause of death was due to stab injury to major pulmonary vessels which
caused massive intrapuaral hemorrhage. In cross-examination, P.W.5 stated
that he found that the stab [left side] injury was above the nipple of the
deceased.
19. In the PME Report [Ext.-3], P.W.5 recorded the findings as under :-
I-EXTRANAL APPERANCE
1. Condition of subject stout emaciated, decomposed etc.
A male deadbody of average built rigor mortis present in all
four limbs eye closed, face pale. A small lacerated injury
over left side of the chest 2 inches above the nipple.
* * * * * * * * *
III-THORAX
1. Walis ribs and cartilages : A small lacerated injury over
left side of the chest 2 inches
above the nipple. Rib - 3rd rib
fractured.
2. Pleurae : Ruptured at level of 3 rib
[left].
3. Laryax and trach ere : Healthy, congested.
4. Right lung : Healthy, congested.
5. Left lung : Healthy, covered with full of
blood about 3 liters.
6. Pericar [dium] : Healthy, Congested.
7. Heart : Rt. side of the hart is full of
dark fluid blood while left
side is empty.
8. Vessels : Healthy.
* * * * * * * * * *
* * * * * * * * * *
MORE DETAILED DESCRIPTION OF INJURY OR DISEASE
The injuries described are anti mortem in nature.
In my opinion the cause of death was due to stab injury to major
pulmonary vessels which caused massive intrapuaral hemorrhage.
Time since death 15 -- 16 hrs.
The 10th day of January, 2014.
20. In the PME Report [Ext.-3], the Autopsy Doctor [P.W.5] had further opined that
the time of death was about 15-16 hours earlier. Such time of death seemed to
have approximated with the time of occurrence of assault, as testified by P.W.1
and P.W.2. It is found that the I.O. [P.W.7] in the course of investigation had
conducted the inquest on the deadbody of the deceased at Bihpuria PHC
through the Circle Officer, Bihpuria Revenue Circle at 08-00 p.m. on
10.01.2014 on 10.01.2014 before sending the deadbody for post-mortem
examination. In the Inquest Report, exhibited as Ext.-5, it was reported that
there was stabbing by knife on the left chest on the deadbody. P.W.2, was a
witness to the Inquest Report [Ext.-5]. The findings in the Inquest Report
[Ext.-5] is found consistent with the findings recorded in the PME Report [Ext.-
3] and the ocular testimony of P.W.1 and P.W.2.
21. As regards the alleged weapon of assault, it is the case of the prosecution that
the weapon of assault was a knife of about 9 inches [approx.] long. P.W.4
testified to the effect that having heard the accused had killed his brother-in-
law with a knife, he went to the place of occurrence and saw a knife injury on
the chest of the deceased. He further testified that after arrival of the Police
personnel, the accused himself showed the knife, which was used in the
incident. He further stated that the knife was seized by the Police personnel in
his presence vide Seizure List [Ext.-2] wherein he subscribed his signature as
Ext.-2[1]. P.W.4 was, however, not confronted by the defence on the point of
such seizure of the knife in any manner whatsoever. This part of the testimony
of P.W.4 found corroboration in the testimony of the I.O. [P.W.7], who stated
that he taking the accused along went to a place near the Magic Stand, Ward
no. 8, Bihpuria Town. At that place, he recovered a knife, as shown by the
accused. He [P.W.7] then drew a Sketch Map of the P.O. [Ext.-7] wherefrom
the knife was seized, under his signature Ext.-7[1]. The I.O. [P.W.7] exhibited
the Seizure List whereby the knife was sized as Ext.-2 and his signature
therein. P.W.4 was one of the seizure witnesses of the Seizure List [Ext.-2].
The defence was not successful in eliciting anything contrary, by cross-
examining the I.O. [P.W.7]. When the I.O. [P.W.7] was cross-examined, he
stated that the knife, as shown by the accused, was recovered in a culvert
located between the Magic [Vehicle] Stand and Hanuman Mandir in Bihpuria
Town.
22. Upon a close scrutiny and evaluation of the above evidence led by the
prosecution, it has clearly emerged that the death of the deceased on
10.01.2014 was caused due to the assault made in the vital part of the body
that is, two inches above the nipple on the left chest. As a result of the injury,
which was a stab injury to major pulmonary vessels, there was massive
intrapuaral hemorrhage. As a result of the injury, the left lung of the deceased
was fully covered with blood of about three litres and the right side of the heart
was full of dark fluid blood while the left side became empty. The death of the
deceased was clearly a homicidal death. From the testimony of P.W.1 and
P.W.2, who were found to be consistent throughout, it is clear that it was the
accused, who had inflicted the stab injury on the deceased.
23. In the backdrop of the above evidence/materials on record, the question which
has, thus, arisen for consideration is whether the offence disclosed by the facts
and circumstances established by the prosecution against the accused 'murder'
or 'culpable homicide not amounting to murder'. As has been established by a
long line of decisions, in the scheme of the Penal Code, 'culpable homicide' is
genus and 'murder' is species. All 'murder' is 'culpable homicide' and not vice-
versa. Culpable homicide sense special characteristic of murder is culpable
homicide not amounting to murder defines.
24. In State of Andhra Pradesh vs. Rayavarapu Punnayya, reported in [1976]
4 SCC 381, it has been explained that for the purpose of fixing punishment,
proportionate to the gravity of the 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 amongst the punishments provided for the
three grades. Culpable homicide of this degree is punishable under the second
part of Section 304. It has been explained further that when a Court is required
to answer the question whether the offence is 'murder' or 'culpable homicide
not amounting to murder', on the facts of a case, it will be convenient to
approach the problem in three stages. The first question to be considered at
the first stage would be, whether the accused has done an act by doing which
he has caused the death of another. Proof of such causal connection between
the act of the accused and the death, leads to the second stage for considering
whether that act of the accused amounts to 'culpable homicide' as defined in
Section 299. If the answer to this question is prima facie found in the
affirmative, the stage for considering the operation of Section 300, Penal Code,
is reached. This is the stage at which the court should determine whether the
facts proved by the prosecution bring the case within the ambit of any of the
four clauses of the definition of 'murder' contained in Section 300. If the
answer to this question is in the negative the offence would be 'culpable
homicide not amounting to murder', punishable under the first or the second
part of the Section 304, depending, respectively, on whether the second or the
third clause of Section 299 is applicable. If this question is found in the
positive, but the case comes within any of the exceptions enumerated in
Section 300, the offence would still be 'culpable homicide not amounting to
murder', punishable under the first part of Section 304, Penal Code.
25. In Clause 'thirdly' of Section 300, IPC, it has been set forth that 'culpable
homicide' is 'murder' if it is done 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. The situation has been explained
further in Illustration [c] thereto, which reads as under :-
[c] A intentionally gives Z a sword-cut or club-wound sufficient
to cause the death of a man in the ordinary course of nature.
Z dies in consequence. Here, A is guilty of murder, although
he may not have intended to cause Z's death.
26. In Virsa Singh vs. State of Punjab, reported in 1958 SCR 1495, Clause
'thirdly' of Section 300, IPC has been elucidated in the following manner :-
The prosecution must prove the following facts before it can
bring a case under Section 300, 'thirdly', First, it must
establish quite objectively, that a bodily injury is present;
secondly the nature of the injury must be proved. These are
purely objective investigations. It must be proved that there
was an intention to inflict that particular injury, that is to
say, that it was not accidental or unintentional or that some
other kind of injury was intended. Once these three elements
are proved to be present, the enquiry proceeds further, and
fourthly it must be proved that the injury of the type just
described made up of the three elements set out above was
sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender.
27. From the above exposition and the Rule laid down in Virsa Singh [supra],
even if the intention of accused was limited to the infliction of a bodily injury
sufficient to cause death in the ordinary course of nature and did not extend to
the intention of causing death, the offence would be murder and Illustration [c]
appended to Section 300 of the Penal Code has clearly brought out the said
point.
28. After reaching a finding that the offence here comes within the scope and
ambit of Clause thirdly of Section 300, IPC, that is, murder what needs an
examination is whether the facts and circumstances obtaining in the case
brings it within one of the Exceptions to Section 300, IPC.
29. Whether a case would come within the Exception 4 of Section 300, IPC or not
has come to be considered in Dhirajbahi Gorakhbhai Nayak vs. State of
Gujarat, reported in [2003] 9 SCC 322. Deliberating on Exception 4 of
Section 300, IPC, it has been observed that Exception 4 deals with cases in
which notwithstanding that a blow may have been struck, or some provocation
given in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect of
guilt upon an equal footing. A 'sudden fight' implies mutual provocation and
blows on each side. The homicide committed is then clearly not traceable to
unilateral provocation, nor could in such cases the whole blame be placed on
one side. A fight suddenly takes place, for which both parties are more or less
to be blamed. It may be that one of them started it, but if the other had not
aggravated it by his own conduct it would not have taken the serious turn it
did. There is then mutual provocation and aggravation, and it is difficult to
apportion the share of blame which attaches to each fighter. The help of
Exception 4 can be invoked if death is caused [a] without premeditation, [b] in
a sudden fight, [c] without the offender having taken undue advantage or
acted in a cruel or unusual manner, and [d] the fight must have been with the
person killed. It has been noted that the 'fight' occurring in Exception 4 to
Section 300, IPC is not defined in IPC. It has observed that it takes two to
make a fight. Heat of passion requires that there must be no time for the
passions to cool down and in this case, the parties had worked themselves into
a fury on account of the verbal altercation in the beginning. A fight is a combat
between two and more persons whether with or without weapons. It is not
possible to enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel is sudden or not
must necessarily depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that there was a sudden
quarrel and there was no premeditation. It must further be shown that the
offender has not taken undue advantage or acted in a cruel or unusual
manner. The expression 'undue advantages' as used in the provision means
'unfair advantage'.
30. From the evidence of the case in hand, more particularly, from the testimonies
of P.W.1, P.W.2 and P.W.3, it has emerged that there was a quarrel between
the accused and the deceased in the morning hours on the date of the
incident. From the testimony of P.W.3, it has emerged that finding that there
was a quarrel between the accused and the deceased in the morning hours on
the date of occurrence, he [P.W.3] told both of them before he was leaving for
work, not to fight. The caution given by P.W.3 to both the accused and the
deceased is suggestive of the fact that the quarrel which took place in the
morning, was not unilateral. It is a pointer to the fact that the incident of
assault which occurred in the evening hours, was a continuation of the quarrel
which broke out between them in the morning on the relevant date. Thus, the
quarrel in the morning was a precursor to the incident occurred in the evening
hours on the relevant day. From the testimony of P.W.2, it has emerged that at
the time of the incident, the deceased was also not unarmed, as P.W.2 testified
that at the time of occurrence, the deceased was holding an iron pipe in his
hands. P.W.2 further testified that when he went to resist the deceased, he
was pushed down. Such situation is clearly suggestive of an aggressive posture
also on the part of the deceased. At the time of occurrence, the accused who is
a resident of the same premises as like the deceased, was in home. The
weapon of assault, the dagger, seized by the prosecution, is one of a kind
which is ordinarily found available in every household in a village. Thus, the
nature of weapon used is not one of exceptional nature. From the testimony of
P.W.1, it has emerged that when the accused was chasing the informant, he
came in confrontation with the deceased on the way. Having come face to
face, it was the accused first who had made the assault on the deceased on
the vital part of the body of the deceased and the deceased, who was also
armed with an iron pipe, did not have the opportunity to retaliate. Explanation
to Exception 4 to Section 300 of the Penal Code has provided that it is
immaterial in such cases which party offers the provocation or commits the first
assault. After giving single blow, the accused did not make any further assault
on the deceased as he was about to fell down. Leaving the deceased in that
stage, the accused left the place of occurrence. Then, the informant-P.W.1,
that is, the wife of the deceased and P.W.2, who were nearby, held the
deceased from falling down. In such obtaining facts and circumstances, the
case appears to be one which is committed without premeditation. It was an
act which emanated in a sudden fight in the heat of passion upon a sudden
quarrel and without the accused having taken unfair, undue advantage or
acting in a cruel or unusual manner.
31. From the above discussion and the reasons assigned therein, we are of the
considered view that the offence committed by the accused is not of the
greatest form of culpable homicide, which is defined in Section 300, IPC. It is a
case of culpable homicide of the second degree, punishable under the first part
of Section 304, IPC. Therefore, Judgment conviction dated 02.07.2015 passed
by the learned trial court in so far as under Section 302, IPC is set aside and
the same is altered to Part-1 of Section 304, IPC.
32. The learned Amicus Curiae has submitted that the period of incarceration of
the accused-appellant is about 10 years 5 months since the date of his initial
arrest.
33. Having regard to the provisions contained in Part-1 of Section 304, IPC, we are
of the view that the ends of justice will be subserved in converting the
sentence of the accused to the period already undergone by him till date,
without any alteration on the point of fine. It is accordingly ordered. The
accused-appellant is to be released from the custody forthwith, if his detention
is not required in connection with any other case. Resultantly, the instant
criminal appeal stands partly allowed to the extent indicated above.
34. Before parting with, we reiterated the recommendation of the learned trial
court to the District Legal Services Authority, Lakhimpur to make an enquiry for
the purpose of granting compensation to the victim as per the extant Victim
Compensation Scheme, framed under Section 357A, CrPC.
35. This Court records its appreciation for the assistance rendered by the learned
Legal Aid Counsel. The learned Legal Aid Counsel is to be paid remuneration
as per the rules in force.
36. The records of the learned trial court are to be sent back immediately.
JUDGE JUDGE
Comparing Assistant
