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1986 Supreme(Gau) 102
GAUHATI HIGH COURT
K. N. SAIKIA AND B. L. HANSARIA, JJ.
KESHAB CHOUDHURY
VERSUS
STATE OF ASSAM
Criminal Appeal No.43 of 1979 and Govt. Cri. Appeal No.39 of 1979,
Decided on : 22 -8 -1986
Exception 4 to Section 300, IPC, applies when culpable homicide is committed without premeditation, in a sudden fight, in the heat of passion, upon a sudden quarrel, and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Headnote:
CRIMINAL LAW - CULPABLE HOMICIDE - EXCEPTION 4 TO SECTION 300, INDIAN PENAL CODE - APPLICABILITY - SUDDEN FIGHT - HEAT OF PASSION - NO PREMEDITATION - NO UNDUE ADVANTAGE TAKEN - OFFENCE UNDER SECTION 304, PART II, INDIAN PENAL CODE - SENTENCE.
Fact of the Case:
The appellant, Keshab Choudhury, was charged under Section 302, Indian Penal Code (IPC), for killing Karuna by striking him with a spade. The prosecution examined seven witnesses, including the doctor and the investigating officer, while the defense examined two witnesses in support of the appellant's plea of alibi.
Finding of the Court:
The trial court convicted the appellant under Section 304, Part I, IPC, and sentenced him to rigorous imprisonment for five years and a fine of Rs. 2,000/-. The State appealed against the conviction under Section 302, IPC.
Issues: 1. Whether the appellant's act fell within Exception 4 to Section 300, IPC, and was punishable under Section 304, Part II, IPC, or whether he should be convicted under Section 302, IPC. 2. The appropriate sentence for the appellant.
Ratio Decidendi: 1. The court held that the appellant's offense fell within Exception 4 to Section 300, IPC, and was punishable under Section 304, Part II, IPC. The court reasoned that there was no premeditation or malice prepense, the quarrel was sudden, the appellant struck the spade blunt side blow at the heat of passion in a sudden fight, and did not take undue advantage or act in a cruel or unusual manner. 2. The court considered the appellant's personal factors, the fact that the occurrence took place more than a decade ago, and the need to avoid giving the impression that well-to-do persons could take a life without undergoing any real punishment. The court sentenced the appellant to rigorous imprisonment for one year and a fine of Rs. 2,000/- (Rupees two thousand), in default to rigorous imprisonment for 6 months.
Final Decision: The court partly allowed the appellant's appeal and dismissed the State's appeal. The appellant's conviction under Section 304, Part I, IPC, was set aside, and he was convicted under Section 304, Part II, IPC, with a sentence of rigorous imprisonment for one year and a fine of Rs. 2,000/-.
Saikia, J. :- As these two appeals are from the same judgment they are heard and disposed of analogously.
2. On an ejahar dated 21-9-1975 lodged by Kunjabala (P.W. 2) at the Tihu outpost of Parawa Police Station, stating that the accused-appellant, Keshab Choudhury, hereinafter referred to as 'the appellant', killed Karuna striking with a spade, police investigated and charge-sheeted the appellant who was charged under S.302, I.P.C.
3. Dr. Umesh Chandra Barua, the then S.D.M. and H. O. at Nalbari performing autopsy on Karuna's cadaver on 21-9-75 found the following injuries :
"(1) One lacerated wound on the scalp over the left temporal region - 3" x 1" x skull deep."
On dissection he found - At the site of the above injury the temporal bone was fractured. Membrane was lacerated with haemorrhage. Brain was lacerated with haemorrhage in the temporal region.
4. At the trial, while the prosecution examined 7 witnesses, including the Doctor and the Investigating Officer, the defence examined two witnesses in support of the appellant's plea of alibi. P.Ws. 4 and 5 claim to be eye-witnesses. In his statement under S.313, Cr. P.C. the appellant denied the allegation and pleaded alibi being present at his P.W.D. quarter at Barama and not at his village home. The informant Kunjabala (P.W. 2) and the scribe Gajen (P.W. 3) are not eye-witnesses to the occurrence. The narratives of the prosecution story is unfolded by P.Ws. 4 and 5, P.W. 5, Gurucharan Kalita, deposed that at the time of occurrence he was ploughing his own paddy field about 240/260 feet away from the place of occurrence. Karuna came by the road taking seedlings in a bullock cart, and keeping the cart on the road he was proceeding to his paddy field driving the pair of bullocks taking the plough and yoke on his shoulder; and when he reached the appellant's land, the latter struck him on the head from the back with the blunt side of a spade and immediately Karuna fell down on his face. One Kalicharan (since deceased) was near and P.W. 4 Kirti was also ploughing nearby. Running to the spot he (P.W. 5) found Karuna dead and the appellant was running towards the south with the spade in hand. Kalicharan and Kirti also came to the place of occurrence and hearing Kirti's cry many others came. Karuna's father, Dhaneswar also came and while Gurucharan was taking Dhaneswar back home he met the informant, Kunjabala (P.W. 2), aunt of the deceased, near the 'Gosaighar' and told Kunjabala that the appellant had killed Karuna and asked her to inform thana. In cross-examination Gurucharan said that he did not hear any altercation between Karuna and the appellant and only saw the latter assaulting the former. According to him the appellant struck Karuna several times but neither he nor Kalicharan raised any cry. Karuna was struck from back side and he fell down and his face sank in the mud. A part of the appellant's land was made muddy on the previous day. Gurucharan earlier took the appellant's land on adhi but was forcefully dispossessed therefrom. He did not know why the appellant killed Karuna. He denied the suggestion that he was fined by the appellant in any 'Mel'. He also took Kunjabala's land on adhi terms.
5. Being informed by Gurucharan, Kunjabala went to the place of occurrence and saw Karuna lying dead. Coming back home she went to her mother's place and met her brother, Gajen (P.W. 3) whom she asked to write the ejahar but the latter refused and asked her to go to the thana. Accordingly, both went to the thana and Kunjabala reported the occurrence verbally and the Daroga stated to have recorded the same. Later the ejahar was written by Karuna to the dictation of Kunjabala and the same was lodged and was received at Barama P. S. through the in charge of Tihu Outpost and was treated as F.I.R. (Ext. 4).
6. P.W. 4, Kirti Ram Baraman, a covillager of the appellant as well as of the deceased, was ploughing 10/15 nals' (120/180 ft) away and saw the appellant coming to his nearby fiel
