RAJANI CHANGMAI vs THE STATE OF ASSAM

Heard Mr. S Buragohain, the learned counsel for the appellant and Mr. K Konwar, the learned Additional Public Prosecutor, Assam for the

respondents.

The appellant has filed the present appeal against the judgment dated 11.01.2013 passed by the learned Sessions Judge, Sivasagar in Sessions

Case No.79(S-S) of 2008 convicting the appellant under Section 302 of the Indian Penal Code(IPC) and sentencing him to imprisonment for life

with a fine of Rs.5000/- and in default thereof to further undergo rigorous imprisonment for six months.

The case of the prosecution in brief is that a FIR was lodged on 19.10.2006 by Sri Rubul Gogoi i.e., elder brother of the deceased stating that

on 18.10.2006, his sister Smti Meenakshi Gogoi eloped with Sri Jadumoni Baruah following a love affair. When the deceased Sri Ratul Gogoi

went to Jadumoni Baruah''s house to enquire about it, Jadumoni''s brother-inlaw Sri Rajani Changmai (the appellant), Jadumoni''s mother , Rajani

Changmai''s wife Menaka Changmai and Jadumoni together with many others, hacked Ratul Gogoi to death with a dao in the courtyard of

Jadumoni''s house and then left the body on the road in front of the house. As a result, Demow Police Station Case No.106 of 2006 under Section

302/34 of the IPC was registered.

Upon conclusion of the investigation, a charge sheet was submitted before the Judicial Magistrate 1st Class, Sivasagar and since the case was

exclusively triable by the Court of Sessions, the case was committed to the Sessions Judge at Sivasagar by the Judicial Magistrate on 10.06.2008.

Thereafter, charge under Section 302 IPC was framed on 12.12.2008 to which, the appellant pleaded not guilty and claimed to be tried.

During trial, the prosecution examined as many as 19 prosecution witnesses. After the prosecution led their evidence, the appellant was

examined under section 313 Cr.P.C. to enable him to explain the circumstances appearing in the evidence against him. Thereafter, the incumbent

working as officer-in-charge of Demow police station was examined as court witness while the wife of the appellant Smti Menaka Changmai was

examined as the lone defence witness. Upon conclusion of the trial, the learned Sessions Judge vide the impugned Judgment dated 11.01.2013

convicted and sentenced the appellant as mentioned earlier.

Mr. S Boragohain, the learned counsel for the appellant at the very outset submits that the appellant does not dispute the commission of the

offence but however, the conviction and sentence in the given facts and circumstances should have been under Section 304-Part- II of the IPC and

not under Section 302 IPC. He submits that the evidence available on record would justify invoking of Exception 4 of Section 300 IPC. Mr. S

Boragohain further submits that it is in the evidence of the prosecution that it was the deceased who had first assaulted the appellant with a bamboo

split by going to his residence whereafter, the appellant brought a mesi dao from his house and gave a dao blow to the deceased in retaliation of

the assault made upon him. He submits that it was a sudden fight in the heat of passion upon being assaulted and the appellant did not take undue

advantage or acted in a cruel or unusual manner. Therefore, Exception 4 of Section 300 of the IPC is attracted and the appellant is only liable for

committing culpabale homicide not amounting to murder as he had no intention of causing death to the deceased. In support of his submissions, the

learned counsel relies upon the following decisions rendered by the Apex Court :

i)Mathew @ Mathachan -vs- State of Kerala, (1992) 1 SCC 74

ii)Sukhbir Singh -vs- State of Haryana, (2002) 3 SCC 327

iii)Byvarapu Raju -vs- State of A.P. & Anr., (2007) 11 SCC 218

Appearing for the State, Mr. K Konwar, the learned Additional Public Prosecutor submits that it is apparent from the evidence on record that

the appellant was only assaulted by the deceased with a split bamboo whereas the appellant in retaliation thereof attacked the deceased with a

mesi dao which in the ordinary course of nature is likely to cause death. He submits that an attack by a mesi dao cannot be considered to be a

commensurate retaliation to an assault by a bamboo split. Therefore, the learned Trial Court rightly convicted and sentenced the appellant under

Section 302 of the IPC. As such, no interference is called for by this Court and the appeal should be dismissed.

We have heard the submissions advanced by the learned counsel for the rival parties and have perused the materials available on record

including the Lower Court records. As submitted by the learned counsel for the appellant, the commission of the offence is not disputed and

therefore, what requires examination is as to whether Exception 4 of Section 300 of the IPC is attracted in which event it may lead to conviction

under Section 304 Part-II IPC instead of the conviction under Section 302 of the same Code by considering the materials available on record. For

this purpose, the evidence led by the prosecution amongst others will have to be examined and appreciated.

As has been stated earlier, the prosecution examined as many as 19 witnesses. PW-1 who is the informant and elder brother of the deceased

deposed before the Court that at the relevant point of time, he was in the house of his uncle Dipen Sensua. Sri Prafulla Konwar who is the PW-4

came to his uncle''s house and informed him about the incident. Thereupon, they proceeded towards the place of occurrence where he found his

mother crying and his younger brother Sri Ratul Gogoi (the deceased) lying dead nearby. He saw cut injury on the neck of the deceased and blood

was coming out from the injury. His mother told him that his sister Meenakshi Gogoi had eloped with their neighbour Jadumoni Baruah and

therefore, the deceased had gone to Jadumoni''s house to enquire about it whereupon, he was killed in their house by the appellant. He also stated

that even before the FIR was lodged by him, the appellant had surrendered before the police at the police station and confessed that he killed the

deceased while showing them the dao with which he had inflicted the injuries. The deposition of PW-1 corroborates the deposition of PW-4 as

PW-4 after seeing what had happened went to inform PW-1 who was in the house of Dipen Sensua at the relevant time. Dipen Sensua who was

called upon as PW-2 in the trial also deposed that PW-4 had come to fetch PW-1 while PW-1 was in his house. The deposition of PW-1

therefore corroborates the deposition of PW-2 as well.

PW-5 Sri Ajit Gogoi deposed that he saw the accused with a dao in his hand approaching him from behind and informing him that he had

hacked Gaonburah Ratul and therefore asked him to take him to the police station. PW-5 got scared and refused to take the appellant to the

police station and he left the place to attend his duty. Similarly, PW-14 also deposed in his cross-examination that he saw the appellant with a dao

in his hand who informed him that he had hacked the Gaonburah and upon hearing the news he stepped aside out of fear. The other prosecution

witnesses who deposed before the Court that they had seen the body of the deceased lying on the road were PW-6, PW-7, PW-8, PW-10 and

PW-16.

PW-6 who is the lone eye witness deposed before the Court that on the day of the incident, he had gone to the house of the appellant and

while he was sitting there, he saw the deceased come and assault the appellant with a bamboo split for some reason. At that point of time, the

appellant was doing some household works in his courtyard . The appellant upon being assaulted brought out a mesi dao from his house and gave

a blow to the deceased. The deceased upon receiving the dao blow shouted and ran out in front of the house. He saw the deceased smeared with

blood lying on the road. Having witnessed the incident, he got scared and went home. PW-6 in his cross examination also deposed that the

deceased struck the appellant first on his face with a split bamboo stick and thereafter he saw the appellant bring a dao and hack the deceased

with it.

PW-9 is the medical Doctor who conducted the post mortem examination on the body of the deceased. He deposed before the Court that on

19.10.2006, he was working as Medical and Health Officer at Sivasagar Civil Hospital. On that day, he on police requisition in connection with

Demow PS Case No.106 of 2006 under Section 302 of the IPC had conducted post mortem examination upon the deceased. Upon such

examination, the injuries that he found on the body of the deceased was:-

i)one cut injury on the base of the left side of the neck, obliquely placed of the size 3"" x 1"" x2"", cutting the vessels and bones with clotted blood

around the wound.

ii) one cut injury, 1"" lower to the injury No. (i) of the size and 4"" x 1"" x 2"" cutting the bone and upper part of the left lung with clotted blood around

the wound. In his opinion, death was caused due to shock and haemorrhage as a result of the injuries, sustained by the deceased. He opined that

the injuries were found on the vital parts of the body which were sufficient in ordinary course of nature to cause death of a person.

Upon seeing the weapon alleged to have been used which was exhibited as material Exhibit- 1, he opined that it was a heavy sharp cutting

weapon, mesi dao , which was sufficient to cause such injuries. In his cross examination, he deposed that there was no chance of survival of the

deceased even if medical treatment was given to the injured.

The appellant''s examination under Section 313 of the Cr.P.C. is basically a denial to the questions put to him by utterance of the words"" I

don''t know"". However, it can be seen that he did not deny the fact of having inflicted the injury upon the deceased with the mesi dao. Also upon

being asked as to whether he had anything to say regarding the quantum of punishment since he was found guilty of offence punishable under

Section 302 IPC, he replied by stating that he was the sole bread earner of his family and therefore begged to be awarded with a lesser

punishment.

From the evidence led by the prosecution witnesses before the Trial Court, what can be deduced is that the appellant is responsible for causing

the injury upon the deceased which led to his death. The appellant through his appointed counsel has also not denied the commission of the offence

but claims for invoking of Exception-4 of Section 300 of the IPC in the given facts and circumstances of the case. Therefore, what would be

important for considering as to whether the aforesaid exception clause is attracted or not would be the evidence of the sole eye witness i.e. PW-6.

PW-6 in his examination in chief deposed that he was a guest of the appellant at the relevant time alongwith two other persons. The deceased

came to the house of the appellant and for some reason he assaulted the appellant with a bamboo split. While PW-6 remained there, the two other

guests left for their homes. Thereafter, he saw the appellant bringing a mesi dao from inside his house and gave a blow to the deceased. Upon

receiving the blow, the deceased shouted and ran out to the road in front of the house. In his cross-examination, PW-6 again deposed that the

deceased was the one who had struck the appellant first with a split bamboo stick on his face and in retaliation, the appellant bought a dao and

hacked the deceased with it. The circumstances under which the appellant reciprocated therefore appears to be that of a sudden reaction in the

heat of passion and without any premeditation.

The Apex Court in the case of Mathew (supra) on the facts presented in that case observed that when the appellant learnt that his youngest

child was removed from his custody, he got agitated and he went to the house of his father-in-law where there was a quarrel. Later they again met

at the shop of PW-2 and a heated argument took place. In such process, there was a sudden fight which led to grappling. Both of them fell on the

ground and it was in that heat of the moment that the appellant whipped out a knife which he was carrying and caused the injury. The Apex Court

therefore opined that the decision taken by the Sessions Court was not one which demanded interference by the High Court. The High Court had

otherwise held that there was no sudden quarrel and that the injuries were not caused in the heat of passion. The Apex Court further held that the

High Court had not appreciated the mental state of the appellant when he learnt that his youngest child was removed from his custody. In the

backdrop of such facts, it was thus opined and held that the view taken by the Sessions Judge did not call for interference by the High Court. The

order of the High Court was therefore set aside and the order of the Sessions Judge restored upon finding that the case was covered by Exception

4 of Section 300 of the IPC.

In the case of Sukhbir Singh (supra), the Apex Court held that in order to avail the benefit of Exception 4 of Secton 300 IPC, the defence is

required to probabilise that the offence was committed without premeditation in a sudden fight and in the heat of passion upon a sudden quarrel

and the offender must have not taken any undue advantage and acted in a cruel or unusual manner. Referring to the facts in that the case, it was

observed that after the injuries were inflicted by the accused and the injured had fallen down, the appellant was not shown to have inflicted any

other injury upon the injured when he was in helpless position. It was proved that the accused who was armed with a bhala caused the injuries

upon the deceased at random in the heat of passion upon a sudden quarrel followed by a fight but however the accused was not found to have

acted in a cruel or unusual manner. Thus, it was held that Exception 4 of Section 300 IPC was attracted.

In the case of Byvarapu Raju (supra), the Apex Court had also altered the conviction of the accused from Section 302 IPC to that of a

conviction under Section 304 part-I IPC after finding the case to attract Exception 4 of Section 300 by referring to the two other decisions of the

Apex Court itself i.e. Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat (2003) 9 SCC 322 and Parkash Chand -vs- State of H.P. (2004) 11

SCC 381. The Apex Court had taken into consideration the fact that besides there being a sudden quarrel and sudden fight in the heat of passon,

the offender should not have taken undue advantage and acted in a cruel or unusual manner besides there being no pre-meditation in order to

attract Exception 4 of Section 300 IPC.

Coming to the case in hand, it can be seen that it was the deceased who had gone to the house of the appellant on account of his sister having

eloped with Jadumoni Baruah. Upon reaching the house of the appellant, he assaulted the appellant with a split bamboo stick and the appellant in

response took out a mesi dao and struck him. The deceased upon being struck by the mesi dao shouted and ran out to the road whereupon he fell

down and succumbed to his injury. From the evidence on record, it can be seen that the appellant thereafter did not attack the deceased and upon

seeing PW-5, PW-14 and PW-18, he informed them that he had hacked the deceased while he was still holding the dao in his hand. The appellant

in fact asked PW-5 to take him to the police station. Thus, it can be seen that there was no premeditation on the part of the appellant in attacking

the deceased. It was a sudden fight in the heat of passion and the appellant did not take undue advantage or acted in an unusual manner. That

being the position, we are of the considered opinion that Exception No.4 of Section 300 IPC would be attracted to the facts of the present case.

In that view of the matter, upon giving our anxious consideration to the facts and circumstances of the case, the conviction under Section 302 of the

IPC is altered to a conviction under Section 304 part.II of the IPC.

On such conviction, we are of the view that a rigorous imprisonment for custodial sentence of 7 years and fine of Rs.5000/- would meet the

ends of justice. In default of paying the fine, the appellant shall undergo a further rigorous imprisonment for 6 months. Needless to say, the period

of imprisonment undergone will be adjusted against the modified sentence.

With the above modification and direction, the criminal appeal stands disposed of.