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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
SUMAN SHYAM, MALASRI NANDI, JJ.
Rakesh Brahma, S/o Late Uday Ram Brahma – Appellant
Versus
State of Assam and Anr. – Respondents
Crl. A. 168 of 2020
Decided on : 01-04-2022
Indian Penal Code, 1860 - Section 302, 304, 300, 299 - Arms Act, 1959 - Section 27 – Criminal Procedure Code, 1973 - Section 313, 162, 157, 162(1) and 428 - Murder Offence - Culpable Homicide - Whether prosecution has proved beyond doubt commission of an offence by accused/appellant punishable under Section 302 IPC read with 27 of Arms Act, 1959 - Whether trial Court committed an error sentencing accused for an offence under Section 302 IPC - Whether witnesses were members of NDFB or general public - Whether accused/appellant has made out a case for conviction under section 304 part II IPC instead of section 302 IPC - Whether instrument or manner of retaliation is cruel and dangerous in its nature
Finding of the Court :
Incident took place in heat of passion and all requirements under section 300 Exception 4 of IPC have been satisfied - Therefore benefit of Exception 4 under section 300 IPC is attracted to fact situations and accused/appellant is entitled to this benefit - Thus, considering factual background and legal position set out above, inevitable conclusion is that appropriate conviction of accused/appellant would be under section 304 part II IPC instead of Section 302 of IPC - Therefore Court hold that accused/appellant is not guilty of murder but his wrongful act - Amounts to culpable homicide not amounting to murder - Thus conviction of appellant under section 302 IPC is not sustainable - It is accordingly modified and converted to under section 304 part II IPC - In so far as offence under section 27 of Arms Act, 1959 is concerned, evidence of accused/appellant is relevant to prove offence in question - Accused/appellant, while deposing before court, in his cross examination, admitted that though he was carrying a pistol on date of incident, his license had not been renewed - Vide Material Exhibit-8, last renewal and which was renewed - Under such backdrop conviction of appellant under section 27 of Arms Act is maintained – Court have heard learned counsel for respective parties on point of sentence - While sustaining sentence awarding under section 27 of Arms Act Court feel that a sentence of ten years of rigorous imprisonment for offence under section 304 part II IPC shall suffice in present case - Amount of fine as imposed by learned Trial Court will remain as same - Both sentences shall run concurrently.
Result: Appeal allowed in part.
JUDGMENT :
Malasri Nandi, J.
1. Heard Mr. B.D. Das, learned Sr. Counsel assisted by Mr. H.K. Sarma, learned counsel for the appellant. Also heard Ms. B. Bhuyan, learned Addl. P.P. Assam appearing for the State and Mr. B.D. Konwar, learned Sr. Counsel assisted by Mr. H. Agarwal, learned counsel for the respondent No. 2.
2. The appellant being the sole accused in Sessions Case No. 151/2017 on the file of Sessions Judge, Bongaigaon, charged and convicted for life for the offence punishable under Section 302 IPC and to pay a fine of Rs. 10,000/-in default to undergo 6(six) months simple imprisonment and for 5 (five) years rigorous imprisonment for the offence under Section 27 of Arms Act, 1959 and to pay a fine of Rs. 5,000/-in default to undergo 2(two) months simple imprisonment, has filed this criminal appeal. All sentences were directed to run concurrently.
3. The case of the prosecution is that on 02.01.2016, the informant Nwrwm Basumatary lodged an Ejahar before the O/C Kokrajhar P.S. Stating inter-alia that on 01.01.2016 at about 8.00 P.M. a surrendered NDFB member Rakesh Brahma who lives near the surrendered NDFB Camp, Kokrajhar, primary office at Sudempuri, shot Rajan Brahma @ Daren Brahma from a close range with his registered pistol near the bunker of B.T.C. Chief, as a result of which, he died on the spot. The members of the office brought the dead body to the courtyard of the office. After the incident Rakesh Brahma fled away from the scene.
4. It is also the case of the prosecution that on the day of incident i.e. on 01.01.2016, New Year party was going on in the NDFB camp as well as in the house of the accused/appellant. Crackers were busted to celebrate the New Year party. Alarmed with the bursting of crackers the accused/appellant fired three blank shots. When the informant approached the house of the accused to enquire about the firing, a quarrel took place between the informant and the accused/appellant. When the quarrel was going on, the deceased i.e. Daren Brahma @ Ranjan Brahma came to the house of the accused/appellant and asked them to stop fighting, as a result of which, the accused rebuked him and went inside his house, brought out a pistol and shot at Daren Brahma as a result of which, he died on the spot.
5. The prosecution sought to prove its case by examining 15(fifteen) witnesses and producing 11(eleven) documents and 9(nine) material objects. On the other hand, the defence examined 5(five) witnesses including the accused/appellant in support of their case. Perusal of the entire evidence shows that the prosecution has based its case mainly on the testimonies of three eye-witnesses i.e. PW-1 Nwrwm Basumatary, PW-2 Bilifang Narzary and PW-3 Kumar Narzary. PW-10, is the doctor who conducted post-mortem on the dead body of the deceased. Exhibit-5, is the P.M. report. The opinion of the doctor is that the death was due to shock and haemorrhage following bullet injury.
6. After completion of investigation, charge-sheet was submitted against the accused/appellant under Section 302 IPC and Section 27 of Arms Act, 1959. The Court of Addl. CJM, Kokrajhar took cognizance of the case on the basis of charge-sheet submitted by the Investigating Officer and committed the case to the Court of Sessions. The trial Court of Sessions Judge, Kokrajhar framed charges under Section 302 IPC and 27 of the Arms Act to which the accused/appellant pleaded not guilty and claimed to be tried.
7. It is pertinent to say here that in view of the order passed by this Court in Transfer Petition (Crl.) no. 14/2018 dated 23.07.2018 to transmit the case record to the Court of Sessions Judge, Bongaigaon vide order dated 07.08.2018, the Sessions Judge, Kokrajhar transferred the case record pertaining to Kokrajhar Sessions Case No. 43(k)/2018 to the court of Sessions Judge, Bongaigaon for further trial and accordingly, the subsequent trial was held in the Court of Sessions Judge, Bongaigaon.
8. During trial, learned Sessions Judge, Bongaigaon recorde
Under such backdrop the conviction of the appellant under section 27 of Arms Act is maintained.
The absence of medical evidence and postmortem report creates reasonable doubt regarding the appellant's conviction for murder under Section 302 IPC.
In cases of direct evidence, the presence or absence of motive is less significant, and credible eyewitness testimony can suffice to establish guilt beyond a reasonable doubt.
The court established that a lack of premeditation and the presence of provocation can reduce a murder charge to culpable homicide not amounting to murder.
The court determined that the appellant's actions constituted culpable homicide under Section 304 Part II due to lack of intent, modifying the conviction from murder under Section 302.
In a case of circumstantial evidence, the absence of motive is not always fatal to the prosecution case.
The court confirmed the conviction for murder under IPC, establishing that motive and evidence proved the accused's guilt beyond reasonable doubt, while setting aside the conviction under the Arms Ac....
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