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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUMAN SHYAM, ARUN DEV CHOUDHURY, JJ
Sri Montu Bhumij, S/o Lt Mohan Bhumij - Appellant
Versus
The State of Assam and 3 Ors - Respondent
Crl.A.9 of 2020
Decided on : 30-11-2021
Indian Penal Code, 1860 - Section 302, 96, 300, 99 and 304 – Criminal Procedure Code, 1973 - Section 313, 164 - Murder Offence – Offence of culpable homicide amounting to murder- Right of Private Defence - Appeal Against Conviction - Prosecution case, in a nutshell, is to effect that appellant/accused had picked up a quarrel with his maternal uncle - Unable to control himself, appellant had hacked his uncle with a “mit-dao” leading to his death - Whether accused had acted in exercise of his right of private defence.
Finding of the Court:
It has come out from evidence of PWs-4 and 8 that on day of incident it is deceased who, in an inebriated condition, had entered house and threatened to inflict injury upon the PWs-4 and 8 and their children - However, there is no evidence to show that at that time deceased was actually in a position to inflict injury to accused or his family members – Court is convinced that in this case, accused had acted without premeditation - Deceased was aggressor in this case - Being provoked by deceased, accused had acted in a heat of passion having lost his self-control - That apart, Court also find that after incident, accused did not act with cruelty or in any unusual manner but had approached Secretary of VDP by offering to surrender before police - Testimony of PW-3 also goes to show that accused was expressing remorse over his conduct in hacking his uncle with a dao - It also transpires from evidence on record that deceased did not have any immovable property or house to stay and therefore, he was living with accused for past several years - It is, therefore, difficult to believe that having treated deceased with such kindness, accused would hack him to death with a dao save and except acting under grave and sudden provocation - Therefore, although it cannot be said that accused did not have knowledge that it would cause death to deceased, he certainly did not have intent to cause death to deceased – Court is of view that present case would come under Section 304 Part-II of IPC – Court accordingly, set aside conviction of appellant under Section 302 of IPC and convict him under Section 304 Part-II of IPC - Appellant is awarded sentence of 7 y2 (seven and half) years of rigorous imprisonment - Fine imposed by learned Sessions Judge would, however, remain unaltered.
Result; Appeal partly allowed
JUDGMENT :
Suman Shyam, J
Heard Ms. J. Paul, learned counsel appearing for the sole appellant. We have also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam, appearing for the State/respondent No.1. None has appeared for the informant/respondent No.2.
2. By the impugned judgment and order dated 11.04.2019 passed by the learned Sessions Judge, Karbi Anglong, Diphu, Assam in connection with Sessions Case No.40/2018 the sole appellant Sri Montu Bhumij was convicted under Section 302 of the Indian Penal Code for committing the murder of his uncle Babulal Nagbangshi and sentenced to undergo rigorous imprisonment for life and also to pay fine ofRs.5000/- and in default, to suffer simple imprisonment for another six months. By filing the instant appeal the appellant has assailed the judgment and order dated 11.04.2019 passed by the learned Sessions Judge, Karbi Anglong.
3. The prosecution case, in a nutshell, is to the effect that on 04.03.2018 at about 7.30 p.m. the appellant/accused had picked up a quarrel with his maternal uncle Babulal Nagbangshi. Unable to control himself, the appellant had hacked his uncle Babulal Nagbangshi with a “mit-dao” leading to his death.
4. On 04.03.2018 Sri Bharali Gogoi i.e. the President of the VDP of the village, had lodged an ejahar before the Officer-in-Charge, Borpathar Police Station, Karbi Anglong reporting the incident. Based on the ejahar dated 04.03.2018, Borpathar P.S. Case No.14/2018 was registered under Section 302 of the IPC. On completion of the investigation the Investigating Officer (I.O.) had laid the charge-sheet against the accused, based on which, the learned Sessions Judge had framed charge under Section 302 of the IPC against the accused. Since the accused had pleaded innocence, the matter went up for trial.
5. During trial, the prosecution side had examined as many as 14 witnesses to bring home the charge framed against the accused. In his statement recorded under Section 313 of the Cr.P.C. the accused had denied all the incriminating circumstances put to him. However, the defence side did not adduce any evidence.
6. Upon conclusion of trial the learned Sessions Judge had passed the impugned judgment and order dated 11.04.2019 convicting the appellant under Section 302 of the IPC and sentenced him as aforesaid.
7. One of the three informants in this case, Sri Bharali Gogoi, was the President of the VDP. He was examined as prosecution witness No.1 (PW-1). This witness has deposed before the court that the incident took place on 04.03.2018. The deceased was the maternal uncle of the accused. On the day of occurrence the accused, after committing the incident, had appeared before Swarup Gogoi (PW-2), the Secretary of the VDP, with a “mit-dao” and told him that he had hacked his maternal uncle. The VDP Secretary thereafter, informed him over phone. Then he came to the house of Swarup Gogoi and saw that the accused was standing with a dao in his hand. Thereafter, Swarup Gogoi and he, together took the accused to the Borpathar Police Station along with the dao and handed him over to the police. PW-1 has confirmed that he had lodged the ejahar and Ext-1 is the said ejahar. During his cross-examination, PW-1 has stated that around the time of the occurrence the deceased was staying with the accused in the house of the latter. According to the PW-1, the deceased used to often consume liquor and thereafter, abuse the accused and his wife by using slang language. In the year 2012 the accused had informed him and the police in writing that the deceased had chased him with a dao so as to kill him. Accordingly, a meeting was held in the village and the people present in the meeting had asked the accused to pardon the deceased since he was an elderly person. Thereafter, the accused had kept the deceased in his house and was treating him with care.
8. PW-2, Sri Swarup Gogoi was the Secretary of the VDP of village Dihingia Gaon when the incident took place. PW-2 has deposed that the inc
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