Subal Baidya, J.@mdashThis criminal appeal is directed against the judgment and order of conviction u/s 302 of the Indian Penal Code and sentenced to suffer imprisonment for life with fine of Rs. 3,000/- with default clause passed by the learned Additional Sessions Judge, 3rd Court, Krishnagar, Nadia in connection with Sessions trial No. 1 (XI) 2009 arising out of Sessions Case No. 52(11) 2009. Initially, the appeal has been preferred by the learned advocate Mr. Atish Kumar Biswas on behalf of the appellant, but thereafter Mr. Biswas did not appear and then this Court issued an administrative notice upon the appellant in the correctional home and in response to that notice the appellant made an appeal in writing to this Court through superintendent, Dum Dum Central Correctional Home to appoint an advocate at free of cost from Government panel to defend him as he is unable to engage a lawyer due to the poverty. Although on the date fixed Mr. Biswas appeared in person and stated that it may be that the appellant will engage him once again, but to expedite the matter and in view of the prayer of the appellant, Mr. S.S. Ali has been engaged by this Court to represent the appellant.
2. Heard the learned counsel appearing on behalf of the appellant as well as the learned public prosecutor. Perused the impugned judgment, the deposition of the witnesses examined for the prosecution and other materials on record.
3. The background fact of the prosecution case out of which the Criminal Appeal No. 355 of 2010 is arising, in brief, is as follows: On July 10, 2009 at about 4 PM a quarrel took place over the possession of the courtyard of the house of the deceased and the appellant while the deceased Bhagirath Das (younger brother) coming to the house from outside saw his elder brother, the appellant Raj Kumar Das @ Buro preparing a fence covering the common tube-well and during quarrelling the appellant suddenly struck the deceased, the husband of the complainant repeatedly on his chest, throat with a dao in his hand and as a result, the deceased fell on the ground with bleeding injuries and expired. The complainant and her mother-in-law tried to intervene, but in vain, and at that time the wife of the deceased, the complainant herein was pregnant for eight months for which she could not save her husband''s life, but causing the death of her husband the appellant fled away from the house.
4. The aforesaid incident being reported to the Kaliganj Police Station a case u/s 302 of the Indian Penal Code was registered and after completion of investigation police submitted the charge-sheet for the self-same offence against the appellant and thereafter the appellant was placed on trial to answer the charge u/s 302 of the Indian Penal code before the learned Additional Sessions Judge, 3rd Court, Krishnagar, Nadia.
5. During trial prosecution examined as many as fifteen witnesses and out of them the de facto complainant was examined as P.W. 1 while the mother of the appellant and the deceased was examined as P.W. 2. P.W. 3, the maternal uncle of the appellant was declared a hostile witness. P.W. 4 is the paternal uncle of the deceased and the appellant while the P.W. 5 is the elder brother of the P.W. 1. The P.W. 6 and P.W. 7 are the neighbours of the deceased while the P.W. 8 is a resident of adjoining village, Gobra. The P.W. 9 and P.W. 13 are the maternal uncle and the father of the P.W. 1 respectively. The P.W. 10 is the post mortem doctor while P.W. 11 is the constable who carried the dead body of the victim to the post mortem doctor (P.W. 10). P.W. 12 is an ASI of Police while P.W. 14 and P.W. 15 are the two Investigating Officers of the case. However, none was examined by the defence.
6. It transpires from the trend of cross-examination and the answer given by the appellant during his examination u/s 313 of the Code of Criminal Procedure that the case of the defence is one of the innocence and false implications.
7. In support of the appeal Mr. S.S. Ali, the learned advocate for the appellant firstly contended that P.W. 2, P.W. 3, P.W. 5, P.W. 6, P.W. 7, P.W. 9 and P.W. 13 all are post occurrence witnesses as per their respective depositions and as such they could not throw any light directly regarding the matter as how the alleged incident took place.
8. Secondly, he contended that P.W. 8 and P.W. 9 have been examined by the prosecution as witnesses to the alleged recovery and seizure of ''dao'', the weapon of the offence, but, in fact, they cannot be treated at all as seizure witnesses in the true sense of the term because P.W. 8 is illiterate and P.W. 9 admitted in his cross-examination that he had given three signatures in total on written papers which were not read over and explained to him nor he read the same and he signed on the papers as per request of the Investigating Officer and he had also given one signature at the Police Station after 10 to 12 days and, therefore, the alleged recovery and seizure of ''dao'', the weapon of the offence has not been proved by the evidence of any independent and reliable witness.
9. Thirdly, he contended that as per deposition of the post mortem doctor, P.W. 10 the weapon used for causing such injuries has to be heavy in nature whereas the Material Exhibit II, the alleged weapon of offence i.e. ''dao'' is a medium sized weapon and as such the injuries found on the body of the deceased cannot be caused by the Material Exhibit II and, therefore, the Material Exhibit II cannot be accepted as the weapon of the offence.
10. Mr. Ali, fourthly contended that the P.W. 1 being the wife of the deceased is an interested witness and P.W. 2 residing with P.W. 1 deposed falsely against the appellant in suppression of truth and as such they cannot be believed.
11. Fifthly, Mr. Ali contended that there was no premeditation to commit alleged murder and the incident took place in course of hot altercation and on the spur of the moment and as per prosecution case, ''dao'' was in the hand of the appellant who was then erecting a fence covering the common tube-well with jeoli-plants and, therefore, the alleged act of the appellant does not come within the purview of the definition of murder and as such the conviction of the appellant by the trial Court u/s 302 of the Indian Penal Code is not sustainable in law and, accordingly, the conviction u/s 302 of the Indian Penal Code and sentenced imposed thereon is liable to be set aside and the appellant is entitled to a clear acquittal.
12. Sixthly, Mr. Ali further contended that prosecution relied on the P.W. 8 as an independent witness, but he was a mere chance witness and has been planted as an independent witness by the prosecution for proving the offence against the appellant, but the P.W. 8 being such nature of witness cannot be believed at all.
13. Lastly, Mr. Ali contended that at best the allegation of the offence falls within exception 4 to Section 300 Indian Penal Code; that is, the offence of culpable homicide not amounting to murder and, therefore, it may come within the purview of Section 304 (part-II) of Indian Penal Code.
14. On the other hand, the learned public prosecutor vehemently contended that prosecution adduced sufficient material evidences to establish the guilt of the appellant. He further contended that the prosecution case is based on the evidence of two eye-witnesses namely P.W. 1 and P.W. 2 who are the widow of the deceased and the mother of the deceased and the appellant respectively and there is nothing to show that the P.W. 1 and the P.W. 2 cannot be believed. He also contended that P.W. 8 who witnessed the last part of the incident cannot be disbelieved by way of terming him as a chance and planted witness.
15. The learned public prosecutor also contended that one of the seizure witnesses namely P.W. 8 is an independent witness and there is nothing to disbelieve him so far as his deposition regarding the seizure of weapon of offence i.e. ''dao'' (Material Exhibit -II) as brought out/produced by the appellant from the bamboo-grove of Hari Das is concerned.
16. Mr. Manjit Singh, learned public prosecutor further contended that P.W. 2 is the mother of the deceased and the appellant. She already lost her younger son due to the death of the deceased and then why she would recourse to the falsity when their exists the apprehension of loosing her other son i.e. the appellant. Being the mother she has come forward to tell the truth as to what she saw at the time of incident taken place at the behest of the appellant on the victim, the deceased Bhagirath Das and as such the P.W. 2 should be believed and so also the P.W. 1, the worst sufferer before whom the horrible incident was caused by the appellant.
17. Lastly, Mr. Singh in his usual fairness submitted that, of course, there was no premeditation on the part of the appellant to commit murder of the deceased and the incident happened upon the deceased on the spur of the moment in a sudden fight upon a sudden quarrel with ''dao'' with which the appellant was erecting a fence in the courtyard of the unpartitioned house covering the common tube-well and, therefore, the offence in question actually cannot be termed as culpable homicide amounting to murder, but in view of exception 4 to Section 300 of the Indian Penal Code it falls within the ambit of culpable homicide not amounting to murder as provided u/s 304 of the Indian Penal Code.
18. Before coming to the conclusion the evidences adduced from the side of the prosecution should be looked into. On perusal of the deposition of the prosecution witnesses it is evident that P.W. 4, 5, 6, 7, 9 and 13 are the post-occurrence witnesses who coming to the house of the deceased saw the victim Bhagirath Das, the deceased husband of P.W. 1 lying in the courtyard with cut injuries resulting to his death as deposed by the post mortem doctor, P.W. 10 who opined that the injuries on the person of the deceased can be possible with sharp weapon like the Material Exhibit II (dao).
19. According to the prosecution, the case is based on the evidence of the eye-witnesses namely P.W. 1 and P.W. 2 who are the wife and the mother respectively of the deceased, the younger brother of the appellant.
20. Admittedly, the deceased, the appellant and their mother (P.W. 2) used to reside in the same unpartitioned house having northern side room occupied by the deceased with his eight months'' pregnant wife (PW1) and the southern side room possessed by the appellant with his wife, three years'' old son and one year old daughter. The verandah in front of both the rooms was occupied by the mother (P.W. 2). The separate kitchens of both the brothers are situated beside their respective room on both sides of the common courtyard, the common tube-well is located almost at the centre of the said courtyard.
21. From the deposition of PW 1 it appears that at about 4 PM the accused Raj Kumar Das @ Buro was constructing a fencing in the courtyard inclusive of the tube-well to prevent them from taking water and her husband (the deceased Bhagirath Das) returned to the house from outside and when he saw the fencing being constructed, a quarrel ensued between the accused and her husband, and her mother-in-law (PW 2) intervened and asked her Bhasur (elder brother-in-law, the appellant) as to why he constructed the fence and not to quarrel. We find its corroboration from the deposition of PW2 who clearly stated that she tried to pacify the brothers, but they did not pay any heed to her request and the accused (appellant) struck the deceased with a ''dao'' on his neck and on seeing that she become unconscious and after being struck with the ''dao'', the younger son (deceased) died at the spot after five minutes and thereafter the accused fled away with his daughter and she did not see her elder daughter-in-law (wife of the appellant) who was present at the spot. It is revealed from the deposition of the P.W. 2 that after incident the accused and his wife never returned to their said house and she herself resides with her younger daughter-in-law (P.W. 1). This P.W. 2 in her cross-examination asserted that she was three/four cubits away from her son and tried to pacify. This P.W. 2 is no other person, but the mother of the appellant and the deceased. There is nothing in the deposition of P.W. 2 nor the defence has been able to establish any circumstance leading to believe that the PW 2 deposed falsely against her only living son, the appellant.
22. It transpires from the deposition of PW1 that at the relevant time the accused chopped the deceased with a ''dao'' on his neck, ribs, back, hand and buttock causing bleeding profusely and then the accused Raj Kumar Das proceeded menacingly to attack her and at this her husband, the deceased in his injured condition came to save her, but immediately fell down dead. PW 1 deposed that at that time she asked the accused as to what he had done and the accused again tried to proceed to strike her and at that time Kartik Ghosh, PW 8 came and saved her.
23. It is true that the PW1 did not tell regarding the arrival of said Kartik Ghosh at the house of the deceased in the complaint (Exhibit - I) and she also did not tell the same to the Investigating Officer, but Kartik Ghosh, P.W. 8 categorically stated in his deposition that he was tending cows and buffaloes last 25th Asar near the house of Bhagirath Das (deceased) and he had heard screaming and shouting from the said house and he wanted to enquire regarding the said noise and on reaching there he found that Bhagirath was lying with cut and bleeding injuries and then also his legs were moving slightly and when P.W. 1 was screaming and at that time when the accused Buro was about to attack her, he reached the residence and then he prevented the accused Buro from attacking PW1 and then he went to call the nearby people and on returning he found the accused had left. This P.W. 8 further asserted in his deposition that initially when he went to the house, he found both PWs 1 and 2 and the accused and also his wife there and thereafter he could not see accused Buro. The deposition of PW 8 makes it clear that he entered the house of the deceased on hearing screaming and shouting and saw at that time also the legs of the victim were moving slightly and on entering when he saw the accused attacking the PW1, he prevented him from striking the PW 1. We find that this PW 8 was not even suggested by the defence to the effect that he never came to the house of the deceased on hearing screaming and shouting. The PW 8 clearly stated in his cross-examination that he did not prevent the accused Buro from attacking PW 1 by physically restraining him. It seems to us that the accused Raj Kumar Das @ Buro was then armed with ''dao'' and it is quite natural that in fear of being assaulted by the accused with sharp weapon i.e. ''dao'', the PW 8 did not prevent the accused from attacking PW 1 by physically restraining him. Going through the deposition of PW 8 we find nothing to disbelieve him in this regard.
24. PW 1 at the time of incident was pregnant of eight months. It is very natural that she was worried in respect of the birth of her unborn child. Immediately before the lodging of FIR she witnessed the horrible death of her husband in the hand of her elder brother-in-law, the appellant as to how he caused the death of her husband by striking with ''dao'' on his neck, ribs, back and buttocks, even she became unconscious after seeing the horrible death of her husband and in such a condition it is quite natural to forget on her part to mention in the FIR regarding the arrival of Kartik Ghosh as her savior from the hand of the appellant. On due consideration it is our view that the learned trial Court rightly relied the PW 8 in this regard. We also find nothing in the deposition of PW 1 and PW 2 to disbelieve them and in this regard the findings of the learned Court below regarding the incident caused by the accused with ''dao'' on the deceased Bhagirath Das in their paternal house being cogent and reliable are acceptable.
25. Regarding the injuries caused on the person of the deceased by the appellant with ''dao'' it transpires that the post mortem doctor, PW 10 clearly stated that the injuries can be possible with such sharp weapon like Material Exhibit II. So, in this regard we are of the opinion that the learned trial Court rightly held that PW 10 not being cross-examined on the point of the injuries suffered by the deceased as well as his death from such injuries that the deceased expired due to such injuries remains undisputed and proved.
26. It transpires that following the recovery statement (Exhibit 13) of the appellant and being led by him the weapon of offence i.e. ''dao'' as produced from the bamboo-grove of Hari Das, the Investigating Officer, PW 14 seized the same under seizure list (Exhibit 4/2) in presence of the witnesses namely PW 8 and PW 9. It is true that PW 9 stated in his cross-examination that he had given three signatures in total on written papers and the said documents were not read over and explained to him nor did he read the same. It was argued that the PW 9 did not know the nature of the documents signed by him and, therefore, he cannot be called as the seizure witness. But this PW 9 categorically stated in his deposition that accused Buro produced the ''dao'' from the bamboo-grove of Hari and the said ''dao'' was seized by the police under a seizure list signed by him. He further stated that the accused also put his signature and received a copy of the same. Although the accused in his examination u/s 313 Cr.P.C. denied the seizure of ''dao'', but on perusal of the deposition PW 9 we find nothing to disbelieve him regarding the recovery and seizure of the weapon of offence i.e. ''dao'' under a seizure list (Exhibit 4/2). Regarding the recovery and seizure of the weapon of offence i.e. ''dao'' the other seizure witness is PW 8 who stated that after 10 to 12 days of the incident he saw Buro (appellant) in arrested condition by the police near the crasher of Bhava Mandal near the middle part of Barabandh and chottobandh at around 3 P.M. and the accused also produced the katari (Material Exhibit II) from the bamboo-grove of Hari and then police seized the said katari under a seizure list and he put his L.T.I. on it. He further stated that he had also given his L.T.I.s on some seized articles and he also identified the seized katari. He further stated that the Investigating Officer had taken his L.T.I. on a paper pasted on the ''dao''. We have gone through the depositions of the PW 8 and PW 9 and also the deposition of the Investigating Officer, PW 14 along with the findings of the learned Court below in this regard. Going through the same we find that the learned Court below rightly believed the recovery and the seizure of the weapon of offence i.e. dao under a seizure list in presence of the PW 8 and PW 9 being produced by the appellant from the bamboo-grove of Hari Das. We have meticulously considered the evidence of the P.W. 8 in respect of his role in the last part of the incident and also regarding the seizure of the weapon of offence and found nothing to form an opinion that the P.W. 8 is a mere chance and planted witness, rather his evidence makes it clear that he is an independent and reliable witness.
27. No plea of the right to private defence has been canvassed by the defence and even the defence made no attempt to establish the right of private defence for inflicting and causing such cut injuries on the person of a deceased with the said sharp weapon. The appellant in his examination u/s 313 of the Code of Criminal Procedure only pleaded that he is innocent and not guilty and the allegation made against him is false and he was not present in the house and he had gone to the market. No evidence has been adduced from the side of defence to establish that the appellant''s plea to the effect that he had gone to the market at the relevant time is true.
28. The P.W. 8 on entering the house of the deceased and the appellant saw the appellant and his wife and also the P.W. 1 and P.W. 2 and also the victim Bhagirath Das lying with cut and bleeding injuries and at that time also the legs of the victim were moving slightly. So, there is no scope to think that the deceased sustained such injuries in any other manner.
29. The appellant was erecting a fence on the courtyard covering the common tube-well. The house including the courtyard was the unpartitioned property and when the deceased on return to the house from outside saw the fence being constructed, a quarrel ensued between the accused (appellant) and the deceased and in course of hot altercation the accused with a ''dao'' in his hand struck the deceased on his neck, ribs, back, hand and buttocks causing cut and bleeding injuries resulting to the death of the victim. In view of this factual matrix, it is necessary to see the applicability of exception 4 to Section 300 of the Indian Penal Code. For application of this exception 4 the following conditions must be fulfilled.
i) Death must be caused in a sudden fight.
ii) Sudden fight must be without any premeditation.
iii) It must occur in the heat of passion upon a sudden quarrel.
iv) The offender must not have taken undue advantage or must not have acted in a cruel or unusual manner.
v) It is immaterial as to which party offered the provocation or committed the first assault.
vi) The fight must have been with the person killed.
30. In the instant case, courtyard was unpartitioned. Tube-well was used by both the brothers. The appellant was erecting a fence on the common courtyard covering the common tube-well resulting to the deprivation of the using of the tube-well by the deceased. The deceased on returning to the house from outside saw the fence being constructed by the appellant. Seeing it a quarrel ensued between the appellant and the deceased. In course of quarrel the appellant who was then erecting fencing with jeoli-plants struck the deceased on his neck, ribs, back and buttocks with a ''dao'' already in his hand. It is not the case where the appellant in course of altercation entered the room and brought out the ''dao'' therefrom and then struck the deceased with the ''dao''. It has been established that the cut injuries caused on the person of the deceased Bhagirath Das with ''dao'' (Material Exhibit II) by the appellant resulted in his death. P.W. 5, Mithu Biswas, the elder brother of P.W. 1 stated in his cross-examination that he has received the information of incident over his mobile phone that two brothers had been involved with ''maramari'' which suggests straight fight between themselves and ultimately it resulted in the death of the victim Bhagirath Das.
31. Exception 4 to Section 300 of the Indian Penal Code reads as follows:
culpable homicide is not murder if it 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.
32. Section 304 of the Indian Penal Code provides as such: "whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death;
33. Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
37. Going through the provision of Exception 4 to Section 300 of the Indian Penal Code viz-a-viz. the evidences on record we are of the view that the offence committed falls within the ambit of culpable homicide not amounting to murder and the punishment thereof has been provided in Section 304 part II of the Indian Penal Code.
38. Dispute arose between the two brothers over the erection of a fence by the appellant, elder brother who without any cogent reason was erecting a fence covering the common tube-well located almost at the centre of the common courtyard. The dwelling house including the courtyard has not been partitioned. The evidence of P.W. 10, the post mortem doctor discloses that the deceased sustained as many as six injuries although three of them are on the vital parts of the body i.e. on neck, chest and ribs. The appellant being the elder brother struck his younger brother, deceased Bhagirath Das with sharp weapon i.e. ''dao'' for a trifling matter. So, their exists no reason to take any lenient view regarding the imposition of sentence as provided in Section 304 Part-II of the Indian Penal Code. In that view of the matter, in our opinion, it would be just and proper to alter the order of conviction to one u/s 304 Part II of the Indian Penal Code. Accordingly, we convert the conviction of the appellant from u/s 302 to u/s 304 Part II of the Indian Penal Code and for such conviction he is sentenced to suffer rigorous imprisonment for ten years, but considering the fact and circumstance of the case we do not think it fit to impose any fine sentence upon the appellant.
39. The appellant shall be entitled to get set off u/s 428 of the Code of Criminal Procedure. In the result, the appeal stands partly allowed with the alteration of conviction and sentence as aforesaid.
40. The office is directed to communicate this order to the appellant at once. The lower Court record also be sent out. The Criminal Section is directed to deliver the urgent photostat certified copy of this judgment to the parties, if applied for, as early as possible.
Subal Baidya, J.
I agree
