Mintu Ali vs State Of Assam And Anr

A.M. Bujor Barua, J

Heard Mr. TJ Mahanta, learned senior counsel assisted by Mr. B Bora, learned counsel for the accused appellant. Also heard Mr. M Phukan, learned Additional Public Prosecutor, Assam, for the State authority. We have requested Mr. BM Choudhury, learned counsel to assist the Court on the question as to in what manner confessional statements of the accused appellant may be interpreted and considered.

Office Note dated 14.6.2017 shows that a show cause reply had been received against the appeal from the informant/respondent No.2 which itself is an indication that notice has been duly served. However, none appeared on behalf of respondent No.2.

An ejahar dated 3.7.2013 was lodged by Md. Jalal Ali inter alia stating that at around 5 pm, on 3.7.2013, a quarrel took place between Md. Abdul Salam, a resident of Moukhowa Mudoi Pathar and the accused persons namely, Md. Mintu Ali, Md. Ahmed Ali, Md. Khabirat Ali and Md. Bhaity Ali. In the quarrel, the aforesaid four accused persons confronted the deceased Md. Abdul Salam at around 6 PM on his way to the market and caused grievous injuries on him by dealing blows on various parts of his body. In the circumstance, the accused appellant was charged of having caused the death of the deceased Md. Abdul Salam and that he had committed an offence under Section 302/34 IPC. It is taken note that amongst the four accused persons named in the ejahar, except the present accused appellant, Md. Mintu Ali, the other three accused persons had been acquitted. In the resultant situation, the appeal has been preferred by the appellant against his conviction.

We have gone through the judgment which apparently is dated 24.5.2016 although three different dates are mentioned therein. By the said judgment, the accused appellant Md. Mintu Ali was convicted on the basis of the confessional statement dated 9.7.2013 made by him under Section 164 CrPC. The judgment reveals that the sole basis of convicting the accused appellant was the confessional statement of 9.7.2013, in a case where there was no other evidence before the prosecuting authorities to prove that it was the accused appellant who had committed the offence. In the circumstance, we do not go into the other evidences being led by the prosecution authorities except for the confessional statements dated 9.7.2013 and also the evidence as regards the injuries sustained by the deceased in order to corroborate the stand taken in the confessional statement.

Upon going through the procedure followed by the authorities in recording the confessional statements, we find that the prescribed procedure had been duly followed and there is no infirmity in the confessional statement. In fact, both the accused appellant as well as the State authority are relying upon the confessional statement and no grievance has been raised against the maintainability of the confessional statement. The confessional statement is as follows;

"Salam Ali @ Bhai and I had been working together for about 18 (Eighteen) days. Thereafter, upon finding said Salam Ali @ Bhai's work unsatisfactory, I drove him out of my business.

Since that day, Salam Ali @ Bhai used to call me by making phone call from an unknown number to collect goods ('Shashi' tree). But, I received information that the said Salam Ali @ Bhai was looking for an opportunity to assault/kill me. And for that reason I did not go as called by Salam.

After a few days, while I was returning home after playing football, Salam Ali and the members of his family confronted me in front of their house, abused me and tried to attack me. They confronted me in this way on three occasions. On the third occasion, Salam Ali confronted me on the road taking a dao in his hand and tried to attack me. But I managed to save myself.

Thereafter, I went home and then came out to a shop with a dao in my hand. I then again came across Salam Ali. Then I asked Salam Ali why he was trying to assault/kill me. As Salam Ali took a dao in his hand, I inflicted a blow in his neck with the dao in my hand. Thereafter, I dealt blows in his hand(s) and leg(s) and fled the scene."

A reading of the confessional statement would show that the deceased Salam Ali @ Bhai had worked with the accused appellant for a period of 18 days after which he was driven out from his employment. Since the day deceased was removed from employment, he kept on calling the accused appellant from some unknown numbers asking him to collect something from him. But, the accused appellant had received some information that by calling him, the deceased was looking for an opportunity to assault/kill him and for that reason the accused appellant did not respond to the call of the deceased. The statement further showed that a few days prior to the occurrence when the accused appellant was returning home, the deceased Salam Ali and some of his family members confronted him in front of their house and abused him and also tried to attack. In this manner, the accused appellant was confronted on three occasions. On the third occasion, when he was confronted,  the deceased had a dao in his hand and also tried to attack the accused appellant, who managed to save himself. After the said incident, when the accused appellant was required to come out of his house, he came with a dao in his hand. When he again came across the deceased, he asked the deceased as to why he was trying to assault/kill him. On being asked, the deceased took the dao in his hand and at that stage the accused appellant inflicted a blow on his neck with the dao he had in his hand and thereafter, gave two more blows on his hand and legs. The seizure list also shows that two different daos were seized, which again corroborates the confessional statement that both the deceased as well as the accused had dao in their respective hands. Further, when we examine the confessional statement, we take note that after being driven away from employment, the deceased confronted the accused appellant on three different occasions and on the third occasion, he had dao in his hand and made an attempt to assault/kill the accused appellant.

The resultant situation instilled a fear in the mind of the accused appellant which required him to carry a dao when he next came out of his house. When the appellant again came across the deceased Salam Ali, he asked the deceased as to why he was trying to assault/kill the accused appellant and at that stage, without giving any reply, the deceased took a dao in his hand. Considering the earlier incident where the deceased had tried to attack the accused appellant with a dao during the third confrontation, the accused appellant in return inflicted a blow on the neck of the deceased with two further blows on his hand and legs. The circumstance in which the blows were inflicted by the accused appellant as revealed from the confessional statements, is a clear case where the accused appellant had exercised the right of private defence against the probable attack from the deceased. In the circumstance, by relying upon the confessional statements of 9.7.2013, the accused appellant had been convicted under Section 302 of the IPC as per the judgment dated 24.5.2016 of the learned Additional Sessions Judge, Golaghat passed in Sessions Case No.132/2014. In the present appeal also, the prosecution is relying upon the confessional statements of 9.7.2013 to establish that the accused appellant had rightly been convicted by the learned Additional Sessions Judge, Golaghat.

In the circumstance, we are required to examine as to what would be implication and consequences of the confessional statements of 9.7.2013. No doubt, it has clearly been stated in the confessional statement that the accused appellant had inflicted a blow on the neck of the deceased with the dao in his hand and thereafter dealt two further blows on his hand and legs and thereafter, he fled away. But, once we accept the inculpatory part of the confessional statements that it is the accused appellant who had inflicted dao blow on the neck of the deceased, a question would necessarily arise as to what would happen to the other part of the confessional statements where the circumstance under which the blow was inflicted on the neck of the deceased with the dao, as had been stated and explained. The evidence on record does not show that the prosecution in any manner had confronted the accused appellant as regards the unreliability or unsustainability of the other part of confessional statements other than the inculpatory part of the confessional statements so as to reduce its credibility.

In other words, whole of the confessional statements of 9.7.2013 remains on record. In the circumstance, even we now take into consideration the inculpatory part in the confessional statements to convict the accused appellant on the basis of his confession as regards the commission of the offence what would happen to the other part of the confessional statements where the circumstances as a whole had been stated and explained.

A situation can also be visualised that prosecution can either not rely upon the confessional statement for its purpose or it can rely upon it for the purpose of asking for a conviction of the accused. If the prosecution intends to rely on the confessional statement, in the absence of any further material by which the other part of the statements may be diluted, in our view, the whole of the statement would have to be taken into consideration or on other hand, if the prosecution do not intend to rely upon the confessional statements, the whole of the statements may stand rejected.

In the instant case, therefore, we are of the view that the whole of the confessional statements of 9.7.2013 would have to be taken into consideration. In the event, the conviction of the accused appellant is based on the statements made in the said confessional statements, we therefore, also take into consideration the explanation put forward by the accused appellant in his confessional statements as to why he had inflicted the blows on the deceased. The confessional statements clearly reveal that the deceased was repeatedly confronting the accused appellant and on the third confrontation, he made an attempt to assault/kill the appellant with a dao. Therefore, on the subsequent occasion, when the accused appellant came out of his house, he took a dao in his hand for his defence and in the confrontation, when the deceased took a dao, the accused appellant with his own dao which he was carrying, inflicted the blows on the deceased.

To answer the question as to whether the aforesaid circumstance had satisfied the requirement of private defence, we would like to have a look on the provision of Section 100 IPC. Section 100 IPC clearly provides that right of private defence is available in a situation where an assault may reasonably cause the apprehension that the death will otherwise be consequence of such assault or such an assault may reasonably cause apprehension that grievous hurt will otherwise be consequence of such assault.

In the instant case, upon being confronted with a dao by the deceased and that too, for the second time with a dao, an apprehension would necessarily be there in the mind of the accused appellant that either death or grievous injury may be the consequence of it. Accordingly, the circumstance in which the blows were inflicted by the accused appellant, as discernible from the confessional statements, is that if the accused appellant had not acted such by inflicting the blows on the deceased/assailant, either death or grievous injury might have been caused to him. Accordingly, we accept that the circumstance in which the blows were inflicted by the accused appellant, was done in exercise of private defence of body.

Having said so, a further examination would be required as to whether the act of the accused appellant was done with the intention to cause death of the deceased/assailant. From the confessional statements, it is taken note that the first blow was inflicted by the accused appellant on the neck of the deceased and thereafter, two further blows were given in his hand and legs. The portion of the body around the neck is vital portion where if a blow is given with a sharp cutting weapon like dao, it cannot be said that the person giving the blow did not have the intention to cause death. As the act of the accused appellant falls within the act where there is intention to cause death, such act would therefore come within the purview of section 300 IPC, but, again, taking into account, the circumstance in which the blows were inflicted, for the purpose of reiteration, that it was the second time he was confronted with the intention to assault with a dao or otherwise for the fourth time within a very short period of time, the accused appellant in the circumstance did not have any other option but to save himself by exercising the right of private defence. When we also take into consideration the circumstance which led the deceased/assailant to act in such circumstance, we find that the deceased was the person who was working together with the accused appellant but, was driven out of the business because of some other dispute. The repeated attempt made by the deceased to assault the accused appellant, which being influenced by a previous circumstance, in our view, a further mitigating factor is available in favour of the accused appellant.

Right of private defence of the accused appellant having been exercised, we are of the view that the act of the accused would come within the purview of Exception 2 of Section 300 IPC. Accordingly, the accused appellant would be guilty of committing culpable homicide not amounting to murder. But, again, as we have already concluded that the manner in which the injuries were inflicted shows the intention on the part of the accused appellant to cause death of the deceased, accordingly, the accused appellant would have to be held guilty under Section 304, Part I of the IPC.

Having held so, a further question would arise that what mitigating circumstance is available to the accused appellant as regards the sentence that must be imposed. The accused appellant and the deceased had a business relationship which ultimately came to an end because of some disputes and because of that, the deceased was driven out by the accused appellant which resulted in a constant bitter feeling against the accused appellant that led the deceased confronting the accused appellant on four occasions with the intention to assault him out of which, on two occasions, a dao was used by the deceased, leads us to arrive at a conclusion that there is a serious mitigating circumstance in favour of the accused appellant. Although the accused appellant would be guilty under Section 304, Part I of the IPC, but, because of serious mitigating factors in his favour, we are of the view that the accused appellant is entitled to a lesser sentence which otherwise may not be available for an offence under Section 304, Part I of the IPC.

Accordingly, we convict the accused appellant under Section 304, Part I of the IPC and sentence him to imprisonment for the period which he has already undergone and the said period of imprisonment which he has already undergone be set off.

The appeal is allowed as indicated above.

Before parting with the case, we appreciate the service of Mr. BM Choudhury, learned counsel, who assisted the Court in arriving at the conclusion as regards the implication and interpretation of the confessional statements.