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2013 Supreme(Gau) 16
IN THE HIGH COURT OF GAUHATI
I.A. Ansari and P.K. Musahary, JJ.
Gambhir Ali
Vs.
State of Assam
Crl. Appeal No. 112 of 2007
Decided On: 08.01.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Mr. B.M. Choudhury, Mrs. N. Bharali and Mr. K. Bora
For Respondents/Defendant: Mr. Dhanesh Das, Addl. PP
Headnote:
Indian Penal Code, 1860 - Sections 302, 304 and 300 - Criminal Procedure Code, 1973 - Section 313 - Murder - Incident - Injuries - In his statement appellant stated that deceased Kudrat of occurrence started ploughing in appellants field and when appellant restrained him from ploughing deceased assaulted him and thereafter tried to stab him with a knife followed by a scuffle in which deceased received injuries - After incident appellant went to police station to inform matter - From his statement it is found that appellant took plea that offence was committed by him on a sudden quarrel and in self defence - To substantiate his defence appellant also examined four witnesses - She found persons near dead body of her husband and some persons took dead body to gateway of one - She also stated that lodged FIR in Police Station - Police took dead body and thereafter she also lodged - On being cross-examined she stated that she did not state before I O about her loitering on road - She denied suggestion that she did not state before IO that she saw bleeding from chest of her husband and that Nessa did not tell her that killed her husband - Held, It is an admitted position had no intention to kill Kudrat but unfortunate incident took place due to sudden scuffle/marpit at provocation of deceased himself - There was no premeditation on part of appellant to kill Kudrat inasmuch as a sudden fight took place when deceased himself in a provocative manner ploughed land and knife he carried pierced into his chest resulting into his death evidence on record proved that Kudrat himself with a knife in his hand chased appellant and appellant tried to snatch knife in scuffle for self defence and it does not amount to taking undue advantage or acting in a cruel or unusual manner - In any case intention to cause death has not been made out - appellant had of course knowledge that injury he might have caused by knife during scuffle was likely to cause death but he had no intention to cause death or to cause such bodily injury as was likely to cause death inasmuch as appellant did not carry knife but he tried to protect himself or prevent from being hit by knife by Kudrat - This fact is sufficient for us to come to a conclusion that act of appellant was without any pre-meditation and intention to cause injury which might cause death to Kudrat - Order accordingly.
P.K. Musahary, J.
1. This appeal has been preferred against the judgment and order dated 21.5.2007 passed by the learned Sessions Judge, Nalbari in Sessions Case No. 142 of 2004 arising out of GR Case No. 531/04 convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life and a fine of Rs. 1000/- and in default of payment of fine, to suffer further rigorous imprisonment for six months. Briefly stated the prosecution case is that on 5.6.2004 at around 6 AM appellant stabbed Kudrat Ali, husband of the informant Safia Bibi, PW-1, by inflicting dagger blow on his chest while he was ploughing in the field and after the incident the appellant fled the scene. Informant's husband was shifted to hospital in a thela (push cart) but he succumbed to his injuries. On receipt of the FIR the police registered a case being Ghograpar Police Station Case No. 44/04 under Section 302 IPC against the appellant. The IO took up the investigation, held inquest over the dead body, seized the crime weapon, blood stained cloths of the deceased and arrested the accused and, thereafter, sent them for FSL examination. On completion of the investigation the IO laid the charge-sheet under Section 302 IPC against the appellant. The Magistrate concerned committed the case to the court of Sessions for trial and disposal. Accordingly the learned Sessions Judge, on the basis of materials found on record, framed charge under Section 302 IPC, which was read over and explained to the appellant, who pleaded not guilty and claimed to be tried.
2. In order to establish the above charge against the appellant the prosecution examined 11 witnesses including the Medical Officer, FSL expert and the I.O. The appellant was examined under Section 313 Cr.P.C. providing him a chance to explain the incriminating material found against him in the evidence. He denied all the evidence against him. In his statement under Section 313 Cr.P.C. the appellant stated that the deceased Kudrat on the date of occurrence started ploughing in the appellant's field and when the appellant restrained him from ploughing, the deceased assaulted him and, thereafter, tried to stab him with a knife followed by a scuffle in which, the deceased received injuries-After the incident, the appellant went to the police station to inform the matter. From his statement, it is found that the appellant took the plea that the offence was committed by him on a sudden quarrel and in self defence. To substantiate his defence the appellant also examined four witnesses.
3. Smti Safia Bibi, wife of the deceased was examined as PW-1. She deposed that on the date and time of the occurrence she was loitering on the road. Her sister-in-law Nessa told her that accused Gambhir (husband of Nessa) killed Kudrat (husband of PW 1) and fled away from the place of occurrence. She rushed to the field and found her husband dead and he was taken in a Thela. She saw bleeding on the chest of the deceased. Police, on receipt other FIR visited the place of occurrence and recorded the statement. In cross-examination, she stated that she did not see the occurrence but she rushed to the field after hearing the hulla. She found about 25 persons near the dead body of her husband and some persons took the dead body to the gateway of one Farzan Ali. She also stated that the Gaonburah, Jamir Ali lodged the FIR in the Police Station. Police took the dead body and thereafter she also lodged an Ejahar. On being cross-examined she stated that she did not state before the I O about her loitering on the road. She denied the suggestion that she did not state before the IO that she saw bleeding from the chest of her husband and that Nessa did not tell her that Gambhir killed her husband.
4. P.W. 2, Md. Jamir Ali, a neighbour of the accused stated that he was working with some labourers in his bamboo groove. He heard hulla and saw accused Gambhir coming declaring that he had finished some one. Thereafter he
