Albad Phawa vs . State Of Meghalaya
2022 Latest Caselaw 333 Meg

     Serial No.01
     Regular List

                     HIGH COURT OF MEGHALAYA
                           AT SHILLONG
Crl.A.No.1/2022
                                              Date of Order: 04.07.2022
Albad Phawa                     Vs.                 State of Meghalaya
Coram:
          Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
          Hon'ble Mr. Justice W. Diengdoh, Judge

Appearance:
For the Appellant            : Mr. M.F. Qureshi, Adv with
                               Ms. K. Chisa, Adv
For the Respondent           : Mr. N.D. Chullai, AAG with

Mr. S. Sengupta, Addl.PP

i) Whether approved for reporting in Yes Law journals etc.:

ii) Whether approved for publication in press: Yes/No

JUDGMENT: (per the Hon'ble, the Chief Justice) (Oral) The short case of the appellant here, who has been convicted

under Section 302 of the Indian Penal Code, 1860 by the impugned

judgment and sentence of November 18, 2021, is that the trial court

completely failed to appreciate the circumstances in which the perceived

offence was committed and gave no credence to the evidence that it was

the victim who had attacked the son of the appellant quite brutally that

provoked the appellant to chase him down and deal a blow to him.

2. The incident occurred at or about 7 pm on January15, 2006. The

first information report was lodged at the Nartiang Outpost covered by the

Jowai Police Station on the following day by a villager. The FIR merely

indicated that the victim had been killed by the appellant herein. There was

no indication as to how the FIR-maker came to know of the incident. The

FIR-maker died before the trial could be taken up. There were two key

witnesses: the son of the appellant who was apparently attacked by the

victim; and, a relative who happened to be nearby and rushed to the place

of occurrence. Such relative of the appellant was examined as PW1 in

course of the trial.

3. The relevant witness claimed that he was at a place some 10 or

15m away from his residence when he heard screaming and quarrelling at

a distance and he rushed to investigate what was happening. When he

reached the place of occurrence, PW1 claimed that he found the son of the

appellant injured in the eye and the son later indicated that he had been

attacked for no apparent reason by the victim. At the time that PW1

reached the spot, the son of the appellant was crying in pain and PW1

testified that he saw the appellant chasing the victim.

4. PW1 went on to say that he waited at the spot with the son of the

appellant for the appellant to return and the appellant came back and said

that he had beaten up the assailant of his son. In the testimony of PW1, he

did not indicate how severely the victim had been beaten up nor did PW1

at the relevant time perceive that the assailant had been killed. It appears

that even the appellant may not have been aware as to whether his son's

assailant had been killed by the blow that the appellant dealt to him. PW1

went on to say that it was only on the next day that he heard in the village

that the victim had died and the dead body had been found when he realised

that it must be have been the appellant who was responsible for it.

5. In his rather terse deposition, the son of the appellant, who was

examined as PW2, claimed that he was returning from the fields when he

met his father and the two of them were walking back home when the

victim, for no apparent reason, struck PW2 with a Khasi dao (wait bnoh).

There is nothing else of note in the testimony of PW2 apart from the fact

that the appellant may have gone after his son's assailant when PW1

arrived at the scene and helped PW2 get up on his feet.

6. There was no eye-witness who saw the appellant assaulting the

victim. There was an earlier incident to which PW1 was attracted by the

accompanying screaming and upon PW1 reaching the place of occurrence,

he found PW2 injured and the appellant chasing the assailant. It does not

appear that PW2 was officially medically examined, though it appears

from the evidence that he was taken to the healthcare centre the following

day. The exact nature of the injuries suffered by PW2 is not evident.

7. Yet, what is undeniable on the basis of the evidence of PW1 and

PW2 is that PW2 suffered a bleeding injury in the eye caused by a Khasi

dao and the appellant, as the father of PW1 was impelled, at such sudden

and grave provocation by the victim, to chase the victim down and strike

him a blow.

8. The post-mortem report revealed that there was one injury to the

head of the victim caused by a sharp and heavy weapon. In the sequence

of events that emanates from the apparently believable evidence is that the

victim hit the appellant's son with a dangerous weapon and dropped the

weapon which the appellant picked up while chasing the victim and the

sudden and grave provocation of the victim assaulting the appellant's son

led to the appellant taking a solitary strike at the victim, which turned to

be fatal. No case of premeditation was made out. The first Exception in

Section 300 of the Penal Code speaks of the loss of self-control as a result

of grave and sudden provocation with the caveat that the provocation is

not sought or voluntarily provoked by the offender. In this case, the

evidence does not suggest that the provocation was sought by the offender

or that the appellant's son was assaulted by the victim as a reaction to any

action of the appellant.

9. It is true that the appellant chased the victim down, but the act

must be seen to be part of the reaction to the sudden and grave provocation

presented by the victim upon the victim striking a severe blow on the head

of the appellant's son. The mere fact that the appellant chased the victim

down and the act of chasing would have involved some time, would not

take the appellant's reaction to the sudden and grave provocation beyond

the purview of the first Exception in Section 300 of the Penal Code. If the

appellant had sometime later gone and struck the victim, there would have

been motive and an element of premeditation. However, the evidence

reveals that both the appellant and his son were surprised and taken aback

by the sudden assault of his son and the appellant, reacted to the serious

injury inflicted on his son's head by chasing the assailant and striking him

a solitary blow.

10. It is apparent that the appellant surrendered the day that it was

discovered that the victim had died and the appellant even carried the wait

bnoh to the police station. The appellant made a confessional statement

under Section 164 of the Code of Criminal Procedure, 1973, which was

not exhibited in course of the trial or relied upon by the prosecution. The

appellant was remorseful for having lost his self-control and committing

the act and begged for forgiveness even in course of his examination under

Section 313 of the Code. The appellant candidly answered all the questions

put to him by the trial judge, including that he surrendered and had

produced the murder weapon at the time of his surrender.

11. On an overall appreciation of what may have happened on that

January evening, it is evident that the suddenness and the gravity of

provocation by the victim resulted in the appellant losing self-control as he

saw his son had been seriously struck on his head, whereupon the appellant

chased his son's assailant and with the same weapon as the assailant had

used at the appellant's son, he struck him a ferocious blow that resulted in

his death. This would be a case squarely covered by the first Exception in

Section 300 of the Penal Code.

12. As a consequence, the punishment that the appellant has to suffer

is one under Section 304 of the Penal Code. There is no evidence that the

act in this case which caused the death of the victim was done with the

intention of causing death or causing such bodily injury as would lead to

the death of the victim. The appellant was understandably angry and dealt

a solitary blow. It does not appear that the appellant was even aware at that

time that the blow had killed the victim or was fatal. According to the

evidence of PW2, the appellant merely stated that he had beaten up his

son's assailant. In such circumstances, the punishment that the appellant

receives would be covered by the second part of Section 304 of the Penal

Code.

13. Accordingly, the appellant is sentenced to 10 years' rigorous

imprisonment together with the same fine of Rs.10,000/- as imposed by

the trial court. The period of detention already suffered will be reckoned

as a part of the sentence. In default of payment of the fine, the appellant

will suffer a further month's simple imprisonment.

14. The judgment of conviction and sentence passed on November

18, 2021 are modified accordingly.

15. Crl.A.No.1 of 2022 is allowed in part as indicated above.

16. Let an authenticated copy of this judgment and order be

immediately made available to the appellant free of cost.

       (W. Diengdoh)                                 (Sanjib Banerjee)
           Judge                                       Chief Justice


Meghalaya
04.07.2022
"Lam DR-PS"