Bihuram Taw @ Rickshow vs State Of Assam

Mir Alfaz Ali, J

Heard Mrs. Purnima Baruah Bordoloi, learned Amicus Curiae and Mrs. B. Bhuyan, learned Additional Public Prosecutor.

This appeal from jail is against the judgment and order passed by learned Sessions Judge, Dhemaji in Sessions Case No. 113(DH)/2016, whereby,

the learned Sessions Judge convicted the appellant under Section 302 I.P.C. and sentenced him to undergo rigorous imprisonment for life and fine of

Rs. 2,000/- (Rupees Two Thousand) with default stipulation.

The prosecution case as reflected in the FIR is that on 26.07.2016 at 4 P.M., when the victim asked the accused to take care of their pigs, which

was causing damage to the crops and other plants of the victim, the accused assaulted her causing serious injuries and the victim died instantaneously.

The husband of the victim lodged the FIR (Exhibit-1), on the basis of which, police registered the Silapathar Police Station Case No. 212/2016 under

Sections 341/302/34 I.P.C. and commenced investigation. In course of the investigation, the Inquest Report on the body was prepared by the Circle

Officer, Silapathar Revenue Circle and the autopsy was conducted by Dr. Subash Sen (P.W.14)

The Autopsy Doctor (P.W.14) who conducted the Post Mortem examination found the following injuries :

“I) EXTERNAL APPEARANCE

1) Wounds â€" position and character :

i. Lacerated wound over rt fronto - partial area oblique 7 cm long, 3 cm wide, and deep up to brain matter. Brown in colour; antero inferior and

posterro superior.

ii. Lacerated wound over right front-parietal area, vertical 8 cm long, 4 cm wide and deep up-to brain matter, brown in colour, situated near the

wound.

2) Bruise Position size and nature : Nil

3) Mark of ligature on neck dissection, etc.: Nil (injury as described)

II) CRANUM AND SPINAL CANAL

1) Scalp, skull, vertebrae : skull bone broken into several pieces. And brain matter severely lacerated affecting rt side whole.

2) Membrane : Lacerated

3) Brain and spinal cord : Severely lacerated Rt sided brain making rt side of head flat.â€​

In the opinion of Dr. Subhash Sen, cause of death was the head injury which was caused by hard blunt object and homicidal in nature. On

completion of the investigation, the charge sheet was led against the appellant and the co-accused Bandhuram Taw under Sections 341/302 I.P.C. and

eventually both the accused persons including the present appellant stood the trial.

Charges were framed against both the accused persons under Sections 341/302 IPC, to which they pleaded not guilty. The prosecution examined

13 witnesses. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and in course of such examination,

the accused sought to set up a plea of right of private defence.

Out of 11 nos. of non-official witnesses examined by the prosecution, P.W.6, P.W.9 and P.W.13 claimed to be eye witnesses. P.W.6, Mun

Morang, the daughter of the victim, testified that about 9 months back, at about 4 P.M., the appellant Bihuram Taw killed her mother by inflicting

injuries with a hoe. She further deposed that there was exchange of hot words between them and when her mother challenged the accused-appellant,

he hit her with a ‘Kur’ (hoe). She also stated, that when her mother (victim) asked the appellant to take care of their pigs, which destroyed the

crops of the victim, the quarrel took place between them. During cross-examination of this witness, it was elicited that at the time of occurrence, the

victim was carrying a Dao in her hand.

P.W.9, Moina Morang deposed, that there was a fight between Rukmini (victim) and the appellant Bihuram and in course of the fight, the appellant

Bihuram hit the victim with a “Kur†(hoe) and upon receiving the injury, she fell down. He however, pleaded ignorance about the participation of

the co-accused Bandhuram in the crime. During cross-examination, he stated that at the time of occurrence P.W.6 and P.W.13 were also with her

and had witnessed the occurrence. This witness also stated during cross-examination that the victim was carrying a “Daoâ€​ in her hand.

P.W.13, Nikita Morang testified, that a pig belonging to the appellant caused damage to the Bamboo grove of the victim. When the victim went to

the appellant and asked him to maintain the pigs properly, the appellant abused her with slang language and told “mind your language else I will

rape youâ€, whereupon, the victim attempted to rush towards the appellant and at that point of time, the appellant brought a hoe from his house and

dealt 3/4 blows on the right side on her head and she died at the spot. This witness also stated in her cross-examination, that the victim had a Dao in

her hand, which she carried in order to drive away the pigs. P.W.13, however, denied the defence suggestion, that the victim attempted to assault the

appellant with the “Daoâ€. Primarily, basing on the oral testimony of these three eye witnesses and the medical evidence, the learned Trial Court

convicted the appellant under Section 302 I.P.C. and awarded sentence as indicated above and also acquitted the co-accused.

Learned Amicus Curiae, submits, referring to the plea taken by the appellant during his examination under Section 313 Cr.P.C., that the appellant

having inflicted the injury in exercise of his right of private defence was entitled to acquittal. Learned Amicus Curiae further submits that having

regard to the weapon used, and the facts and circumstances, under which the occurrence took place, the appellant could not have been convicted

under Section 302 I.P.C. in as much as, the intention to cause death was totally absent. At best the appellant could have been convicted under Section

304 IPC for culpable homicide not amounting to murder, submits the learned Amicus Curiae. Learned Additional Public Prosecutor very fairly

concedes to such submission. In view of the evidence of the eye witnesses as indicted above, the submission made by the learned Amicus Curiae,

appears to be preponderous.

The right of private defence is essentially a defensive or preventive right circumscribed by the statute and not retributive one. Therefore, one who

himself is an aggressor cannot claim the right of private defence. In the instant case evidently, there was quarrel and mutual fight between the victim

and the appellant. It is also in the evidence that in course of quarrel, the appellant brought the hoe and inflicted the injury to the victim which led to her

death. Therefore, having considered the facts and circumstances of the case, we reject the plea of right of private defence.

It is apparent from the medical evidence, that injuries were caused by blunt weapon. All the 3 eye witnesses, who are closely related to the victim,

clearly stated that the quarrel took place between the victim and the accused, on the issue of causing damage to the crops of the victim by the pigs of

the appellant. It is also in the evidence of P.W.6, P.W.9 and P.W.13, that the victim was carrying a Dao in her hand at the time of occurrence.

P.W.13 deposed, that in course of exchange of hot words, the victim attempted to rush to the appellant and at that point of time, the appellant brought

a hoe and dealt 3/4 blows to the victim. What is evident from the oral testimony of the P.W.13 is that, initially the appellant was not armed with any

weapon and he brought the hoe during the course of the quarrel and inflicted the injuries. Thus, though the appellant used a hoe, which is otherwise a

sharp weapon, the medical evidence shows that he used the blunt side of the weapon, which clearly reflected that the appellant did not take any undue

advantage while inflicting injuries. The fact, that initially the appellant did not have any weapon, and he brought the weapon in course of the quarrel

also reflected the absence of premeditation on the part of the appellant. Thus, the fact that quarrel took place between the parties and in course of the

quarrel and the sudden fight, the accused brought the hoe and assaulted the victim without taking any undue advantage, squarely brings the action of

the appellant within the sweep of exception 4 to Section 300 I.P.C. and as such, the act of the appellant would constitute only an offence of culpable

homicide not amounting to murder. Therefore, in our considered view, the conviction and sentence of the appellant under Section 302 I.P.C. cannot be

sustained.

The facts and circumstances indicated above, under which the offence was committed, shows that there was no intention or premeditation to

cause death of the victim; however, from the nature of injuries and the weapon used, it is difficult to hold that the appellant did not have the intention to

cause such bodily injury, which is likely to cause death. Therefore, we set aside the conviction and sentence of the appellant under Section 302 I.P.C.,

and, instead convict him under Section 304 Part I, I.P.C. Having modified the conviction from Section 302 to Section 304 Part I, I.P.C, we sentence

the appellant to undergo rigorous imprisonment for 7 (seven) years. We, however, do not interfere with the sentence of fine and imprisonment in

default, imposed by the learned Sessions Judge. We also do not interfere the impugned judgment pertaining to compensation awarded to the dependent

of the victim under Section 357-A Cr.P.C.

Accordingly, the appeal stands partly allowed.

Appreciating the assistance rendered by Mrs. Purnima Baruah Bordoloi, learned Amicus Curiae, we hereby provide that she will be entitled to

professional fee of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court legal Services Committee shall pay the fee to Mrs.

Bordoloi.

Send down the LCR along with a copy of this judgment.