Spelling Kurbah vs . State Of Meghalaya
2022 Latest Caselaw 76 Meg

        Serial No.05
        Regular List
                        HIGH COURT OF MEGHALAYA
                            AT SHILLONG
Crl.A.No.22/2019
                                                     Date of Order: 15.03.2022
Spelling Kurbah                        Vs.                  State of Meghalaya
Coram:
           Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
           Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s)        : Mr. P Yobin, Legal Aid Counsel
For the Respondent(s)                  : Mr. K Khan, PP 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) Before the merits of the appeal are addressed, it is the judgment of

conviction that needs to be noticed.

2. The impugned judgment of April 30, 2019 is a classic example of

what a judgment can never be. Of the 36 pages expended in coming to a

conclusion that the appellant herein had committed murder and was liable to

be punished therefor, no more than six lines can be said to be the

consideration of the matter or the reflection of how the judicial mind was

applied to the facts to arrive at the conclusion.

3. The first 30 pages or so of the judgment reproduces what the

various witnesses said, what exhibits had been relied upon and the principal

charge that was levelled against the appellant herein. After such Herculean

effort, the trial court went on to record the following which indicates some

application of mind, never mind the extent thereof:

"36. The injuries inflicted on the deceased with a sharp cutting weapon, that too on the vital part like neck, indicate that the accused had given the blow with an intention to cause the death of the deceased. ..."

The next two pages carry a quotation from a Supreme Court

judgment before a further reflection of the judicial mind appears over the

first three lines of paragraph 37:

"37. In the case at hand, the accused caused injury on the vital part of the body that too with a deadly weapon like a „dao‟ which is a sharp edge and heavy weapon where the accused is very much aware that assaulting an unarmed person would cause injury and is likely to cause death ..."

4. The second instance of application of mind, however, expresses

the same sense that the first three lines of paragraph 36 also conveyed.

Paragraph 37 then contains another copious quotation from a Supreme Court

judgment before a further three lines of the Judge‟s contribution appears

from the following:

"... The medical evidence is corroborated with the evidences of the witnesses. The accused person had the knowledge that the weapon used (Material Exhibit-1) which is a sharp edge weapon is a very dangerous if used will prove fatal, so there is no case of provocation."

5. Even if the gibberish that is passed off as English is excused, it is

the repetition of what is contained in the first three lines of paragraph 36 and

the first three lines of paragraph 37, except that the case of provocation is

referred to and it is concluded that just because a deadly weapon was used,

no case of provocation had been made out. One does not follow from the

other; and, there is not even a line of discussion on whether the offence was

one of murder or one of culpable homicide not amounting to murder, or

why.

6. Paragraph 38 of the judgment refers to the appellant‟s answers in

course of his examination under Section 313 of the Code of Criminal

Procedure, 1973 before the operative part of the judgment appears at

paragraph 39 thereof:

"39. Having regards (sic) to the oral and documentary evidence adhered (sic) by the witnesses and in the light of the decision laid down by the Hon‟ble Supreme Court, I am of the firm view that the prosecution has established the case against the accused U/S 302 IPC beyond any shadow of doubt and is convicted (sic)."

7. The conclusion in any judgment, under our constitutional scheme

of things governed by the rule of law, must be founded on reasons. The

reasons indicate the application of the mind to the matters in issue and the

analysis of the facts against the applicable law. In a sense, the reasons chart

out the journey of adjudication from the basic facts to the inferences and the

ultimate conclusion drawn therefrom by applying the applicable law.

8. The impugned judgment is singularly lacking in reasons and

betrays complete non-application of mind or the exercise of any mental

faculty at all.

9. The appellant relies on at least three eyewitness statements to the

effect that the deceased had repeatedly teased the appellant on that fateful

night of December 14, 2016 and the appellant was enraged thereby. It is true

that the appellant had picked up a wait lyngkut or dao, a sharp cutting

weapon like a machete, and was in the process of swinging the same at the

would-be victim when one of the eyewitnesses intervened, snatched the

weapon from the appellant and put it down. However, the evidence clearly

shows that the deceased continued to tease the appellant, whereupon a

scuffle broke out and the appellant picked up the weapon a second time and

struck the neck of the deceased that resulted in the fatal wound. However, it

is the consistent version of the eyewitnesses that immediately after the

appellant had inflicted the blow, he grabbed hold of the body of his brother,

the victim, tried to press his hand against the wound, probably in an attempt

to stop or control the flow of blood and, later, sobbed inconsolably.

10. Several of the workers were working on a project at Amkhrieh

village in December, 2016, including the appellant and his brother, the

victim. In the evening of December 14, 2016, while some of the persons

were cooking for their dinner at the camp where they put up, the victim kept

taunting and teasing the appellant. The appellant fumed and came to attack

the victim, but despite the appellant being thwarted the first time, upon the

taunting continuing, the appellant could not bear it. The appellant charged at

his brother, a scuffle ensued and the appellant picked up the dao and swung

it at the neck of the brother. There is no case of premeditation made out.

There is a case of provocation and a case of a quarrel. The dao appeared to

be around. It is nobody‟s case that the dao was specifically brought with the

intention of the same being used by the appellant against the victim.

11. Though the prosecution contends that the fact that the dao was

once snatched from the appellant and he later picked it up and hit the victim

therewith demonstrates an element of premeditation, such contention has to

be rejected out of hand. It is possible that if PW 7 Raju, who had initially

snatched the dao from the appellant, had thrown it some distance away, the

appellant may have picked up whatever else was lying nearby to hit the

victim therewith; it was just that Raju having left the dao from where the

appellant had initially picked it up, that the appellant had the chance to pick

it up again when he was peeved and enraged at the continuing taunting by

his brother despite his entreaties to stop.

12. Section 299 of the Indian Penal Code, 1860 defines culpable

homicide to be an act with the intention of causing death, or with the

intention of causing such bodily injury as is likely to cause death, or

committed with the knowledge that it is likely to cause death. Section 300 of

the Penal Code begins with a clause of exception and provides that culpable

homicide would amount to murder, if the act by which the death is caused is

done with the intention of causing death, or with the intention of causing

such bodily injury as the offender knows to be likely to cause death, or if it

is done with the intention of causing bodily injury and the bodily injury

intended to be inflicted is sufficient in the ordinary course to cause death, or

if the person committing the act knows that it is so imminently dangerous

that it must in all probability cause death or such bodily injury as is likely to

cause death.

13. The Exceptions referred to in the opening limb of Section 300 of

the Penal Code follow later in such provision. Of the four Exceptions, the

first is a case where a person loses self-control upon grave and sudden

provocation and causes the death of the person who gave the provocation or

the death of any other by mistake or accident. Such first Exception is hedged

with certain conditions that would not be relevant for the present purpose.

The second Exception pertains to self-defence, which is also not apposite in

the present context. The third Exception pertains to a public servant acting

for the advancement of public justice and such Exception has not been

invoked in this case. The fifth Exception, also, does not apply. The appellant

relies on the fourth Exception which reads as follows:

"Exception 4.- 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."

14. The oral evidence of five workers who were present at the camp

at Amkhrieh on December 14, 2016, along with the appellant herein and the

deceased, may be seen as these five were eyewitnesses and their statements

bring out what really led to the appellant striking his brother with the wait

lyngkut. The evidence of PW 3 Krister Nongrang is the most lucid and the

same is supported and corroborated by the testimonies of PW 4 Phrik

Warjri, PW 5 Kyntli Kharsyntiew, PW 6 Salesh Lawriniang and PW 7 Raju

Rana.

15. According to PW 3, almost all the labourers at the Amkhrieh

camp, including the deceased and the appellant herein, consumed liquor and

an argument broke out between brothers Spelling Kurbah, the appellant

herein, and Bartu Kurbah, the then would-be victim. PW 3 claimed that the

would-be victim kept on teasing the appellant by calling him masi dap

(buffalo) and the appellant requested him to stop. Upon the would-be victim

refusing to relent, the appellant caught hold of the wait lyngkut which was

lying around and tried to strike his brother. Raju was close at hand and he

intervened and snatched the weapon from the appellant, but put it down on

the ground from near where the appellant had picked it up.

16. It is the next bit of the testimony of PW 3 which is of vital

importance, as it indicates the exact nature of the incident and is crucial in

assessing whether the offence would be covered by any of the Exceptions in

Section 300 of the Penal Code:

"There was scuffle between the deceased and the accused. The accused managed to get back the dao and struck on the neck of the deceased."

17. PW 3 then went on to say that immediately after the appellant

struck the victim, co-worker Phrik asked the appellant to cover the wound as

it was bleeding, whereupon the appellant "covered the wound of the

deceased person with a blue blanket". The appellant then handed over his

mobile phone to PW 3 and requested PW 3 to call a vehicle and also inform

a sister of the appellant about the incident. PW 3 also asserted in his cross-

examination that both the appellant and the deceased were drunk and they

were quarrelling over trivial matters.

18. PW 4 more or less corroborated what PW 3 had stated, but not in

as much detail. PW 4 repeated that the appellant covered the victim‟s wound

with a blanket and, when he realized that the victim was dead, "he sat down

and started crying". PW 5 confirmed that both the appellant and the victim

were drunk at the relevant time. PW 6 recalled in course of his testimony in

Court that even after the appellant had calmed down after his first attempt to

strike his brother with the wait lyngkut, the victim started the argument again

which infuriated the appellant. PW 7 corroborated that the victim kept on

teasing the appellant which the appellant could not bear.

19. On the basis of the co-workers‟ description of the incident, it is

evident that there was provocation by the victim as he was irritated at being

taunted. If Raju had not stopped the appellant the first time, the matter may

have been covered by the first Exception in Section 300 of the Penal Code,

subject to ascertaining whether the provocation was grave and sudden. It is

evident that the victim‟s taunting of the appellant was like a red rag to a bull

and it must be kept in mind that the appellant may have been drunk at the

relevant point of time.

20. However, after the appellant‟s failed first attempt to strike the

victim, the victim continued to tease and taunt the appellant, whereupon,

according to PW 3, a scuffle broke out between the two and, in course of

such scuffle, the appellant picked up the same weapon and dealt his brother

the killer blow. This would bring the matter within the fold of the fourth

Exception in Section 300 of the Penal Code as there was a sudden fight in

the heat of passion upon a sudden quarrel and there is no evidence of the

appellant having taken undue advantage or acted in a cruel or unusual

manner.

21. In the present case, the evidence clearly brings out that there was

a quarrel between the two brothers upon the would-be victim teasing or

taunting the appellant and refusing to give up despite the appellant‟s request.

As a result of the constant irritation that the appellant was subjected to, in

the heat of passion, the appellant confronted the victim, the two engaged in a

fight and the appellant picked up the nearest instrument that the appellant

found that would inflict bodily injury to the victim so as to stop the victim

from continuing the diatribe. It so happened that the nearest instrument or

implement that the appellant could lay his hands on was the wait lyngkut.

22. Section 304 of the Penal Code makes a clear distinction between

its two parts. The distinction lies in whether the act had been done with or

without the intention of causing death or causing such bodily injury as was

likely to cause death. Since it was a sharp cutting weapon that had been

picked up and such weapon was brandished a second time after it had earlier

been snatched away from the appellant, it would seem that in his fit of rage,

the appellant may have intended to cause death or cause such bodily injury

as was likely to cause death. If the weapon used were to be a stick or less

dangerous instrument, the appellant may have qualified to get the benefit

under the second part of Section 304 of the Penal Code.

23. The fact that the appellant ought to have been aware, despite

being enraged that the wait lyngkut was a sharp cutting weapon that was

capable of killing a person, coupled with the fact that the appellant dealt the

blow at the neck of the victim, would preclude any benefit of doubt being

given to the appellant for him to qualify for the lesser offence and the

punishment under the second part of Section 304 of the Penal Code..

24. The trial court erred in completely failing to visualise the situation

or the act of the victim that may have enraged the appellant and that

prompted the appellant to swing the weapon at the victim. The trial court

relied on the medical evidence, on which much emphasis has been attempted

to be placed by the prosecution even at the appellate stage, but which

evidence is irrelevant for the present consideration. It is not the appellant‟s

case that he had not dealt a blow to the victim. But it was a solitary blow

dealt in a fit of rage and with the full strength that the appellant could

summon at such stage. That the blow was to the neck and with the full

strength of a normal adult male used to menial labour, would explain the

ferocity of the blow and the nature of the injury inflicted. But there is no

evidence of the appellant continuing to inflict wounds after dealing the

initial blow. Indeed, the evidence reveals that the appellant may have

realised the seriousness or foolishness of what he had done, whereupon the

appellant tried to stop the flow of blood and, upon finding the attempt to be

in vain, he cried over the injury that he had dealt to his brother.

25. There is no doubt that a serious offence was committed, but there

is equally no doubt that there was no element of premeditation or any

semblance of cruelty or unusual behaviour that would disqualify the

appellant from obtaining the benefit under the fourth Exception in Section

300 of the Penal Code.

26. Considering the nature of the incident and the fact that the

appellant had earlier been disarmed but still went on to commit the act, the

punishment that the appellant deserves would be on the higher side; but the

punishment in this case would not be as one under Section 302 of the Penal

Code, though the maximum punishment under the first part of Section 304

of the Penal Code is also life imprisonment. Considering the situation, the

conduct of the appellant both prior to the commission of the act and

immediately thereafter, a ten-year sentence would suffice.

27. Accordingly, the judgment of conviction of April 30, 2019 and

the sentence passed are modified. It is held that the offence committed by

the appellant herein would amount to culpable homicide not being murder

and being covered by the fourth Exception in Section 300 of the Penal Code.

Further, considering the nature of the incident and the fact that the appellant

had committed the act in a fit of rage and there was no element of cruelty or

unusual behaviour involved, the sentence is reduced to one of ten years‟

simple imprisonment. In view of the ten-year sentence imposed, the

appellant is not required to pay any fine.

28. Crl.A.No.22 of 2019 is disposed of.

29. Let a copy of this judgment and order be immediately made

available to the appellant free of cost.

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

Meghalaya
15.03.2022
"Lam DR-PS"