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2021 Supreme(Gau) 616
IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
ACHINTYA MALLA BUJOR BARUA, ROBIN PHUKAN, JJ.
Sahab Uddin Laskar - Petitioner
Versus
The State of Assam, Rep. by P.P., Assam & Ors. - Respondents
Crl.A(J) No. 47 of 2019
Decided On : 15-12-2021
For the Petitioner: Mr. Anjan Kalita, Amicus Curiae.
For the Respondent: P.P., Assam.
Point of Law: The Black’s Law Dictionary (Ninth Edition) defines “inculpatory evidence’ to be an evidence showing or tending to show one’s involvement in a crime or wrong. On the other hand, ‘exculpatory evidence’ is defined to be an evidence tending to establish criminal defence of innocence.
Headnote:
Indian Penal Code, 1860 - Sections 302/34 and 300 – Criminal Procedure Code, 1973 - Section 313 – Offence of murder - Common intention - Detention - Confessional statement - Whether any such evidence may be available, which may corroborate statement made in confessional statement - Alleging that when his father went out from the house to pull his rickshaw, and when he as a auto rickshaw driver was in stand near College, was informed by another auto-rickshaw driver that a dead body of a rickshaw puller was lying near bypass of NH 158 - When informant went to place of occurrence he saw that dead body belonged to his father and time was in morning - In Ejahar informant stated that his father had solemnized second marriage but about a year back accused No.1 had taken away second wife of his father and when his father wanted to bring back his second wife, person accused did not release her and rather threatened to kill his father at any moment. He further stated that on being instigated by named accused No.2, i.e. second wife of deceased, accused No.1 had inflicted fatal injuries on nape, right hand and left cheek of his father.
Finding of the court:
Question of private defence flows on the basis of confessional statement - Confessional statement reveals that there is a confession by the accused that he had caused death of deceased by inflicting blows with dao, but at same time under the law, whole of the confessional statement has to be taken into account and we cannot segregate part of confessional statement, where confession of committing the offence is available and ignore other part of confessional statement where accused states as to how and in what manner and under what circumstance, he had committed offence to which he had confessed - Application of right of private defence can be examined from statement in confessional statement itself without requiring the provision of the general law to be made applicable regarding plea of exercising of right of private defence to be proved by defence - Court view that appellant accused had committed an offence of culpable homicide not amounting to murder and which is an act that may have been done with the knowledge that it is likely to cause death but without any intention to cause death or any such bodily injury as it likely to cause death - Although conduct of accused in taking away the wife of deceased cannot be appreciated in any circumstance but we also take note that after such incident there was a constant quarrel and enmity between deceased and accused - Court have been told that taking period of detention during investigation stage and the period after conviction, the total period the accused appellant being in custody is three years one month - Conviction of five years of rigorous imprisonment would be appropriate by retaining earlier fine with further rigorous imprisonment of three months in default thereof.
Result: Appeal disposed of
JUDGMENT :
A.M. Bujor Barua, J.
Heard Mr. A.M. Barbhuya, learned counsel for the appellant and Ms. S. Jahan, learned Additional Public Prosecutor for the State.
2. An Ejahar dated 27.01.2016 was lodged by Amrul Islam Laskar before the Officer-in-Charge of Hilakandi Police Station inter-alia alleging that at about 8 am on 27.01.2016, when his father went out from the house to pull his rickshaw, and when he as a auto rickshaw driver was in the stand near the SS College, was informed by another auto-rickshaw driver that a dead body of a rickshaw puller was lying near the bypass of NH 158. When the informant went to the place of occurrence he saw that the dead body belonged to his father and the time was 11 am in the morning. In the Ejahar the informant stated that his father had solemnized second marriage but about a year back the accessed named therein Sahab Uddin Laskar had taken away the second wife of his father and when his father wanted to bring back his second wife, the person accused did not release her and rather threatened to kill his father at any moment. He further stated that at about 10 am on 27.01.2016, on being instigated by the named accused No.2, namely, Rushna Begum Laskar, i.e. the second wife of the deceased, the accused No.1 Sahab Uddin Laskar had inflicted fatal injuries on the nape, right hand and left cheek of his father. Upon the Ejahar being lodged, Hailakandi P.S. Case No.52/2016 was registered under Sections 302/34 of the IPC. Upon completion of investigation, the charge-sheet No.148/2016 dated 25.06.2016 was submitted before the learned Chief Judicial Magistrate, Hailakandi. Upon being committed to the Court of Sessions, the following charges were framed against the accused appellant Sahab Uddin Laskar and Rushna Begum Laskar @ Ruksana Begum which is extracted as below:
“….That your, on 27.01.2016 at 10 Sri Ajay Mura(PW-8) at Gangpar Dhumkar Pt. IV on N.H. No. 154 in furtherance of your common intention committed murder intentionally causing the death of Abdul Jalil Laskar, the father of the complainant and your thereby committed the offence punishable under Section 302/34 of the IPC and within(3) the cognizance of this court.”
3. A reading of the charge framed against the appellant goes to show that he was charged of having committed the offence punishable under Sections 302/34 of the IPC inasmuch as on 27.01.2016 at 10 am Gangpar Dhumkar Pt. IV on N.H. No. 154, in furtherance of their common intention had committed murder by intentionally causing the death of Abdul Jalil Laskar.
4. In course of the trial, the prosecution examined as many as 13 witnesses.
5. PW-1 Nazrul Islam Laskar in his deposition stated that upon hearing a hue and cry from the house of the deceased Abdul Jalil Laskar, he rushed to the house of the deceased and was told by his niece that Abdul Jalil Laskar had died at Hailakandi Town. He then boarded an auto rickshaw and came to the place of occurrence near the bridge by the side of NH 154 and found the deceased lying dead in the side of the road. The witness also stated that near the dead body, a dao was found lying. PW-1 also stated that from the people gathered on the place of occurrence he came to know that the accused Sahab Uddin Laskar had killed the deceased by a dao. The witness also stated that the accused Sahab Uddin Laskar had eloped with the wife of the deceased and later on when the deceased had brought back his wife, there was a quarrel between the deceased and the accused. The witness specifically stated that the investigating police upon reaching the place of occurrence had seized the dao that was lying beside the dead body. Reading of the cross examination of PW-1 shows that the aforesaid evidence rendered by him remain un-rebutted although in fact the PW-1 was cross examined.
6. PW-2, Amrul Islam Laskar, the informant in his deposition stated that at 9:30 am on 27.01.2016, he had seen his deceased father washing his rickshaw in front of B.Ed. College, Hailakandi and he
