Diganta Bhuyan @ Bebai vs The State of Assam

The sole appellant Diganta Bhuyan @ Bebai has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation.

The victim of the incident was Durga Bhuyan, aged about 32 years. He was the elder brother of appellant.

According to the prosecution case, Durga Bhuyan, Diganta Bhuyan (appellant), Ajay Bhuyan (PW-3) and Bachan Bhuyan (PW-4) were brothers. Their father had landed properties in Uria Basti of Golaghat District. But the same was not partitioned. All the brothers earlier lived with their parents, but Durga Bhuyan separated after marriage and started living with his wife - Sunita Bhuyan (PW-1) - in a separate house adjacent to his original place of abode. Their original house is a two roomed one, where appellant and Bachan Bhuyan lived with their parents. Appellant wanted the entire properties of his father to be transferred in his name whereas other brothers desired to plant tea saplings in that land. Therefore, there was a quarrel amongst the brothers. On 15.08.2013 at about 9 p.m., a quarrel took place between appellant and Bachan Bhuyan. Hearing the quarrel, Durga Bhuyan went to his original house and tried to pacify his brothers. Sunita Bhuyan also accompanied him. But, as Durga Bhuyan was intervening the quarrel, appellant suddenly assaulted him with a lathi. He also gave a blow with his axe on the head of Durga Bhuyan. Durga Bhuyan immediately fell on the ground profusely bleeding and died on the spot. Seeing this, Sunita Bhuyan raised a hue and cry. Appellant chased her also, but she ran away being infuriated. She took shelter in the house of one Santosh for the night. Bachan Bhuyan also saw appellant assaulting Durga Bhuyan with a lathi and axe on his face, leg and cheek. Bichu Uria (PW-5), Dharmeswar Tanti (PW-8) and Umesh Uria (PW-9), who were neighbours of appellant also rushed to the house of the appellant hearing hue and cry. They too found the dead body of Durga Bhuyan lying in the house of the appellant. 3. Darik Karmakar (PW-2) - President of Diphlu Tea Estate Village Defense Party - got the information about the occurrence over phone from Prakash Uria and he immediately rushed to the house of appellant. He found the dead body of Durga Bhuyan lying there. He also found appellant and his brother in the house. Darik Karmakar then informed the police over phone about the incident and Sub-Inspector Jyotish Phukan (PW-11) came to the place of occurrence immediately. He then apprehended the appellant and on being asked, appellant produced the lathi and the axe. Jyotis Phukan (PW-11) then seized the lathi and the axe vide Exhibit-1 seizure list in presence of Bichu Uria (PW-5), Dharmeswar Tanti (PW-8) and Umesh Uria (PW-9), who was present at the place of occurrence. Inquest was done over the dead body of Durga Bhuyan by Ananda Kumar Das, Executive Magistrate, in presence of Ajoy Bhuyan (PW-3) and Dipen Kurmi/Kanda (PW-10). The dead body of Durga Bhuyan was sent for post-mortem examination. Jyotish Phukan (PW-11) also drew exhibit-6 sketch map and arrested the appellant. Sunita Bhuyan (PW-2) made the First Information Report Exhibit-3 on the next day i.e. 16.08.2013 before the Bokakhat Police Station. Although, Darik Karmakar (PW-2) informed the police first, but the written information given by Sunita was registered as Bokakhat Police Station Case No. 160/2013 under Section 302 of the Indian Penal Code.

Dr. (Mrs) Nijara Devi (PW-7) conducted post mortem examination on the dead body of Durga Bhuyan. She found (i) an incised wound cutting over the left cheek, size-3" in length and one and half inches depth, cutting the muscle and underlying bone, grievous in nature, (ii) an incised wound on the right thigh, size-3" in length and one and half inches depth, cutting muscle up to bone, grievous in nature, (iii) Fracture and dislocation of upper three cervical vertebrae with fracture of occipital bone, (iv) injury in the occipital region and (v) brain matter injured in the occipital region and spinal cord injured at the occipital region. According to the doctor, all the injuries were ante-mortem in nature and death was due to shock and hemorrhage. Her post mortem examination report is Exhibit-2.

Jyotish Phukan (PW-11) after completing the investigation submitted charge-sheet Exhibit-7 against the appellant under Section 302 of the Indian Penal Code.

During trial, the appellant abjured his guilt. He however while being examined as an accused under Section 313 of the Code of Criminal Procedure admitted that there was a quarrel amongst the brothers regarding the lands and Durga Bhuyan was found dead in his house. He also admitted that he produced the axe and a lathi and handed them over to the police. But, he also showed complete ignorance as to how Durga Bhuyan died.

The trial court relying upon the evidence of Sunita Bhuyan and Bachan Bhuyan, convicted and sentenced the appellant as aforesaid. The trial court also relied upon the medical evidence.

It is argued on behalf of the appellant that there is no eye witness except Sunita Bhuyan and Bachan Bhuyan and conviction cannot be based on their testimonies since there was quarrel amongst the brothers regarding distribution of properties and as such both of them had motive to falsely implicate him. It has also been submitted that since there was darkness at the time and place of occurrence, the identity of the assailant is doubtful and in absence of any other credible independent witness; the conviction is not sustainable in law.

After hearing the learned counsel for the parties and perusing the records, we are of the view that the appeal deserves to be dismissed. Both Sunita Bhuyan and Bachan Bhuyan have deposed that appellant had a quarrel with Bachan Bhuyan and when Durga Bhuyan intervened to pacify them, appellant assaulted Durga Bhuyan with a lathi and an axe. Sunita Bhuyan has categorically deposed that appellant gave blow on the head of Durga Bhuyan with an axe and Bacchan Bhuyan too has deposed that appellant assaulted Durga Bhuyan with a lathi and axe on his face, leg and cheek. Both these witnesses were present at the place of occurrence and both of them have corroborated the evidence of each other on their material particulars. There is no possibility either that they could not have recognized the appellant who is the brother-in-law of Sunita Bhuyan and brother of Bachan Bhuyan. Moreover, Bachan Bhuyan lived in the same house with the appellant. Even, Darik Karmakar (PW-2) who arrived at the place of occurrence immediately after the occurrence found appellant in the house along with the dead body of Durga Bhuyan. Appellant has also admitted the fact that there was a quarrel amongst the brothers relating to land and dead body of Durga Bhuyan was also found in the house of the appellant. He did not deny that he was not present at the place of occurrence when the incident took place. He further admitted that he produced and handed over the lathi and the axe-the weapons of assault- to the police. Therefore, his identity is not disputed and the defense plea that there may be some mistake in the identity of the assailant due to darkness is wholly unacceptable. Since, the dead body of Durga Bhuyan was found in his house, appellant was expected to explain as to under what circumstances the same was found in his house. But, he chose not to explain the same and did show complete ignorance. The evidence of Sunita Bhuyan and Bachan Bhuyan are trustworthy and credible since those are not shaken during their cross-examinations and are consistent. Therefore, it cannot be an afterthought to frame appellant unnecessarily.

Besides, Bachan Bhuyan, who is the brother of the appellant had no occasion to speak a lie to implicate his own brother for murdering his other brother only because there was dispute regarding land. Sunita Bhuyan had also named appellant in her Exhibit-3-first information report which was lodged on the following day of occurrence. Even, Darik Karmakar (PW-2) who informed the police over phone immediately after the occurrence named the appellant. Therefore, identity of the appellant has been proved beyond reasonable doubt that he alone inflicted the injuries to Durga Bhuyan.

The medical evidence fully corroborates the evidence of eye witnesses. The doctor also found the injuries on the face and head of Durga Bhyan and opined that the injuries were sufficient to casue death. Therefore, there is no room left for doubting the involvement of appellant in the occurrence and it is only he who is the perpetrator of crime.

Learned counsel for the appellant has however argued that even accepting the prosecution version in totality, the offence against the appellant would not be under Section 302 of the Indian Penal Code but under Part I or Part II of Section 304 of the Indian Penal Code. We find sufficient force in this submission.

In the case of Muthu vs. State AIR 2008 SC 1, it has been held that when in the heat of the moment or in a fit of anger a person does an act without premeditation that person must also be punished but his punishment should be lesser than that of premeditated offences. The Supreme Court has observed that it is for this reason that Exceptions 1 and 4 have been inserted in Section 300 of the Indian Penal Code. Exception 4 to Section 300 of the Indian Penal Code clearly provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight in that heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

As already seen above, the appellant was quarreling with his brother Bachan Bhuyan and Durga Bhuyan went to his house and intervened into the quarrel. The appellant had no intention to cause death to his brother Durga Bhuyan but when Durga Bhuyan intervened, the appellant in a heat of the moment assaulted him resulting into his death. Therefore, the incident took place on a sudden quarrel without any premeditation between the appellant and Durga Bhuyan. Having regard to the facts of the case, we are of the considered view that accused Diganta Bhuyan is not guilty of offence under Section 302 of the Indian Penal Code but he is guilty of committing offence under section 304 Part -I of the Indian Penal Code. Therefore, the sentence of ten years rigorous imprisonment with a fine of Rs. 3000/- would be sufficient in view of the peculiar facts and circumstances of the case. The conviction of the appellant under Section 302 of the Indian Penal Code is accordingly set aside and the same is converted into 304 Part I of the Indian Penal Code. Likewise, the sentence of rigorous imprisonment for life is reduced to ten years rigorous imprisonment with fine of Rs.3000/- or in default to suffer simple imprisonment for one month more.

The appeal stands partly allowed.