Robijul Ali vs State Of Assam And Anr

A.M. Bujor Barua, J

Heard Mr. L.R. Mazumder, learned counsel for the appellant. Also heard Mr. J. Laskar, learned counsel for the informant respondent No.2 and Ms. S. Jahan, learned Additional Public Prosecutor for the State authorities.

An ejahar dated 05.11.2013 was lodged before the Officer-in-Charge of Lakhipur Police Station by Jibul Hussain Borbhuyan inter alia stating that their domestic buffaloes had entered the cultivation of the accused Rabijul Ali at night and damaged some plants. In the next morning an attempt was made to settle the matter where the accused made a demand of compensation for Rs.10,000/- whereas, the influential people of the village tried to convince him to accept a compensation of Rs.3,000/-. Upon disagreement with the compensation offered, the accused wanted to proceed to the police station, when the deceased Suwab Ali tried to resist him, the accused person took out a dagger and assaulted the deceased by felling him on the ground. In the resultant situation, the accused appellant was charged of having committed the murder of the deceased Suwab Ali by intentionally killing him with a knife and thereby committed an offence under Section 302 IPC.

In course of the trial, the informant who examined the PW-1 deposed about their buffalos damaging the vegetable plantation of the accused which resulted in demanding a compensation of Rs.10,000/-, whereas, the people of the village in a bichar had offered him a compensation of Rs.3,000/-. The accused upon refusing to accept the compensation offered to him wanted to go to the police station for lodging an FIR and in doing so when he reached near the house of the VDP he found the deceased and assaulted him with a knife on his chest. PW-1 stated that his sister Sajala Begam on seeing the occurrence, tried to save the deceased by trying to stop the bleeding using her clothes.

PW-2 Sajala Begam Borbhuiya in her deposition reiterated the fact of the vegetable plantation of the accused being damaged by the buffalo belonging to the deceased and the demand of Rs.10,000/- as compensation and the counter offer of Rs. 3,000/-. She further deposed that when the accused proceeded towards the police station for lodging the case her deceased father tried to settle the matter by taking the help of VDP Secretary and proceeded towards his house. She also deposed that the accused who was ahead of her deceased father upon seeing him brought out a dagger. PW-2 requested the accused not to assault her deceased father. But without listening to her, the accused pushed her deceased father on the ground and thereafter inflicted the dagger injury on his chest.

PW-3 who deposed as a neighbor of the accused stated that at around 10 am on the given day, when he was near the place of occurrence, he saw that the deceased was lying on the road and the accused with a dagger was aiming to inflict injury on him and upon seeing it, the witness tried to restrain the accused by asking him not to assault and further stating that necessary compensation would be paid by them. But the accused without hearing such protest inflicted the blow upon the chest of the deceased with his knife.

PW-3 had also given a statement under Section 164 Cr.P.C. before the learned Magistrate which was exhibited as Exbt-5 and in the said statement also the witness had stated that the accused felled down the deceased on the ground and assaulted him with a dagger.

PW-4 Samsur Uddin Barbhuiya who was also well versed with the facts regarding the damage caused by the buffalos and the claim and counter claim for the compensation stated that when the accused refused to accept the compensation offered, he started to abuse and stated that he would file a case in the police station and thereby he proceeded to the police station for lodging an ejahar against the deceased and his other family members. While the deceased proceeded towards the house of VDP Secretary for convincing the accused, he found the accused on the way. The witness who had followed his deceased father heard a hue and cry and saw that the accused had pushed the deceased because of which he fell down on the ground and then the accused had inflicted injury on his chest with a knife and fled away.

PW-5 Happy Begum Barbhuiya who is the daughter of the VDP Secretary to whose house the deceased was proceeding in her deposition stated that at 10/11 am on the given day while she was in the veranda of their shop she saw that the deceased and his two sons Zibul and Samsul were going towards their house. She then saw the accused inflicting a knife blow on the right chest of the deceased, who within five minutes succumbed to his injuries.

PW-8 Dr. Gunojit Das who conducted the post mortem of the deceased stated the following injury to have been found in the body of the deceased:-

"Injury No-1: A stab wound of size 5 X 2 cm at the right side of chest anteriarly placed at the 4th and 5th intercostals space along midclavicular line cutting the skin of cartilages going deep into the thoracic cavity"

PW-9 and 10 who were the two Investigating Officers in their deposition stated the regulation fact as regards the investigation. Apart from the above, we do not find any material evidence on record for it to be depicted in this order which may have its bearing on the outcome.

The accused in his statement under Section 313 Cr.P.C. had taken a stand that there was a bichar where compensation for an amount of Rs.3,000/- was awarded to him and when he was returning from the bichar he was attacked by Sajala, Samsul Uddin and others because of which he fell down on the ground. In the meantime, the deceased came and tried to resist them from assaulting him and in doing so, the deceased fell over the accused and PW-1 who was armed with a dagger and when he tried to assault the accused the dagger blow accidently hit the chest of the deceased.

Without going to the aspect that it was PW-1 who had inflicted the dagger blow on the deceased accidentally when he was tried to inflict the blow, the other aspect of the statement of the accused is that prior to the deceased being inflicted with the fatal injury there was also an attack on the accused by the persons who were present along with the deceased. We have also taken note of that in the cross examination of PW-1, 2 and 4, there is a suggestion by the defence that there was a prior attack on the accused from the side of the deceased before the fatal blow was inflicted. But apart from the above, there is no material on evidence to show that there was an attack by the side of the deceased upon the accused prior to the fatal blow being inflicted.

The aforesaid statement of the accused under Section 313 Cr.P.C. coupled with the suggestion made before PW- 1, 2 and 4 in our view on its own would not amount to sufficient material on evidence to hold in favour of the accused for his right of private defence. But at the same time, from the prosecution witnesses namely, PW- 1, 2, 3 and 4 it is noticed that prior to the act of the accused inflicting the dagger blow on the chest of the deceased there was a quarrel between the parties as regards the damage caused by the buffalo of the deceased in the vegetable plantation of the accused and thereafter a difference of view between the parties as regards the compensation to be paid. Circumstances are also available in the evidence on record that on being not satisfied with the compensation offered, the accused wanted to proceed to the police station but he was restrained by the deceased. Such stand in our view would be sufficient to construe a mitigating circumstance in favour of the accused appellant to bring his act within Exception 4 to Section 300 of the IPC. It being so, the act of the accused in inflicting the fatal blow would amount to culpable homicide not amounting to murder.

Coupled with the evidence on record through the eye witness account of PW- 2, 3 and 5 that it is the accused alone who had inflicted the fatal blows on the deceased, we are of the view that the accused would be guilty of offence under Section 304 IPC. Looking into the nature of the injury sustained by the deceased as deposed by PW-8 who had performed the post mortem we notice that the deceased had sustained a stab wound of size 5 X 2 cm at the right side of chest anteriarly placed at the 4th and 5th intercostals space along midclavicular line cutting the skin of cartilages going deep into the thoracic cavity. Considering the nature of the injury inflicted on the deceased and also considering the weapon used which is a knife/dagger of the size of 11 ½ inch blade and 4 ½ inch handle, we are of the view that at the time of inflicting injury, the accused had the intention to cause death of the deceased.

Accordingly, we are of the view that the accused appellant is guilty of committing an offence under Section 304 Part-I IPC. Accordingly, we convict the accused appellant under Section 304 Part-I IPC. Considering the nature of dispute and the circumstance in which the fatal injury was inflicted by the accused and also considering that only one injury was caused, we sentence the accused appellant to under rigorous imprisonment of 7 (seven) years and to pay a fine of Rs.5,000/- in default thereof a further rigorous imprisonment of 3 (three) months.

The appeal is partly allowed. Send back the LCR.