Sonti Konwar vs The State of Assam

B.L. Hansaria, J.—The Appellant was in his teens when the occurrence had taken place on 30.12.79. He was not only immature, ho was also poor because of which State defense had to be provided to him in the course of trial it has been done in this Court also. One precious life was no doubt lost on 30.12.79 the aforesaid date, at Gunaram young in age was backed to death on the aforesaid date when be was in Lakua-Nabarhabi weekly bazar selling his merchandise, The occurrence bad been witnessed by P.W. 4 Lila, P.W. 5 Tilak and P.W. 6 Jatin, All of them have stated that the accused came suddenly, gave two blows with a dao on Gunaram, one of which fell on his neck. The accused was soon apprehended and handed over to the police. Relying on this eyewitness account along with what has been stated by the accused in his own statement recorded at the time of framing of the charges as well as on conclusion of the trial, the learned Sessions Judge Jorhat has found the Appellant guilty u/s 302 of the Penal Code and has awarded the minimum sentence visualised.

We had heard this appeal once on 17.3.83 and by a judgment delivered in the Court had dismissed the appeal. But for reason recorded in our order dated 18.3.83, we proposed to re-horn the appeal. The first question which we have to answers whether re-hearing is possible in such a situation. Shri Yadav has submitted that us the transcribed judgment had not been signed by us, as has been noted in the order passed on 18.3.83, Section 362 Code of Criminal Procedure would not stand in the way of re-hearing is the bar created by this section operates when the Court has signed its judgment. We have also been referred rightly to Section 353(2) of the Code which deals with the subject of judgment and has stated that a judgment delivered in the Court becomes complete after the transcript is signed. To fortify this position, Shri Yadav has referred us to three decision, all of Allahabad High Court. In Saru Smelting and Refining Corpn. Ltd. Vs. State, it has been stated that though a judgment dictated in open Court can be altered by the Judge before it is signed, it is the Judge alone who can do so. The same view has been expressed in Faulad and Another Vs. State, The last decision is a rendering by a Full Bench of 3 learned Judges in Sangam Lal Vs. Rent Control and Eviction Officer and Others, which has opined that a judgment delivered in open Court but not signed and sealed can be altered.

In view of this we have heard Shri Yadav again and with a fresh mind. From the statement of the accused Appellant recorded u/s 313 Code of Criminal Procedure as well as judicial confession there can be no doubt or dispute about giving of dao blows by the Appellant, his apprehension soon after the commission of the crime and his banding over to the police immediately thereafter. These are admitted facts. The defense case is that the accused had been provoked to do what he had done. According to him what happened was that the day before the occurrence, that is on 29th, he had gone to graze his buffaloes when Bhoga Bora, a cousin of the deceased, and a son of the deceased assaulted him. On the next day, he went to the bazar to sell f ice. and took a dao with him. He asked the deceased Gunaram to lend weight to weigh rice but the weight was thrown on his back. This engaged him because of the happening on the previous day. This led the Appellant to deal dao blow on Gunaram. This is what was stated by the Appellant when his statement was recorded at the close of the trial. When the charge was explained to him on 23.12.80, a similar story had been given. According to the statement even Gunaram was party to the assault in the field and he had really been injured on his abdomen with a knife. In the confessional statement of the accused recorded on 4.1.80, we do not, however, find mention of any alteration in the bazar where the occurrence had taken place. According to the confessional statement after seeing Gunaram going to bazar, the accused went home, took a dao, went to the bazar kept waiting for Gunaram and there he cut him with a dao.

Shri Yadav contends that though in the judicial confession nothing has been stated about any overt act of the deceased in the market, that might be accounted by the fact that in the statement, the accused bad stated whatever be wanted to say and there was no body to question him to say anything furthers in regard to what had happened. It is then urged that as the, prosecution witnesses have not deposed about any motive of the crime or the background of the same, the one unfolded by the accused merits our acceptance because it is probable and the accused has stated about the same twice when be was questioned, by the Court without departure in material particulars. As no crime is committed without motive by a sane person we have felt inclined to accept the one told to the Court by the accused. Though lack of proof of motive would not weaken any prosecution case, the motive, if made known to the Court, can be accepted, even if the same comes, from the mouth of the accused. The accused hag stated about what bad taken place a day or two earlier to the occurrence and thrice; once on 4.1.80, then on 23.12.80 and anally on 25.2.81 and was consistent in saying what bad happened then. So, we are inclined to accept this part of the defense case without any demur. But then this by itself is not enough to regard the ultimate killing as due to "grave and sudden provocation" to bring the case within Exception 1 to Section 300 as pleaded by Shri Yadav. At this stage, we may remind ourselves as to when a provocation can be regarded as grave and sudden. The law in this regard has been succinctly laid down by the Supreme Court in K.M. Nanavati Vs. State of Maharashtra, We may only quote what has been stated in paragraph 85 which has summarized Indian Law in this regard:

The Indian law, relevant to the present enquiry, may be stated thus: The test of "grave and sudden" provocation is whether a reasonable man, belonging to the came class of society as the, accused, placed in the situation in which the accused, was placed would be so provoked an to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to. bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sadden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

The mental background created by the previous act can be taken into consideration as per this decision in ascertaining whether the subsequent act caused grave and sudden provocation. In doing so, we have to remember the class or society from which the accused comes and have to see whether 3 reasonable man placed in his position would have been provoked as to lose his self-control. Of course, if there has been time for passion to be cooled down, the assault cannot be regarded as a result, of grave and sudden provocation.

Let us now see what took place on 30.12.79. According to the accused when he had asked for weight from Gunaram deceased, the same was thrown at him which enraged him. This is what was stated by him on 25.2.81. In his earlier statements made on 23.12.80 he had gone a step further in saying that Gunaram had come chasing to assault him when to save himself he, brandished the dao which struck Gunaram. We cannot accept the chasing part because in subsequent statement nothing was stated about this. The killing cannot, therefore, be laid in any way, related to self-defense. But then it appears to us that Gunaram must have done something to enrage the young Appellant and it may as well be that when the weight was asked for, it was thrown at him. Mere throwing of a weight at a person cannot amount to grave and sudden provocation in ali cases, but as stated in Nanavati''s case, in this country even words and gestures may, in certain circumstances, cause grave and sudden provocation. As the accused, a rustic grazing buffaloes was assaulted a day before by near relations of Gunaram he was definitely under a provocating mood on the day of occurrence. When in such a stage of mind the weight was thrown, the accused armed with dao might have got sufficiently and suddenly provoked so much so as to take life of Gunaram. Through nothing has been stated about this in the confession recorded on 4.1.80, we have not given it much importance because what has been submitted by Shri Yadav in this regard merits acceptance.

In view of all the above, we are satisfied that the present is a case where the accused might have committed the crime in a grave and sudden provocation. It may be stated that for a defense plea to be accepted preponderance of probability is enough and he is not required under the law to establish it beyond reasonable doubt. This requires consideration as to what offence the Accused Appellant had committed, if it was not a case of murder. As a weapon like dao was used and a vital part like the neck was selected to assault which were two in number and it caused almost instantaneous death of the victim, we hold that it attracts the mischief of Section 304 Part I of the Penal Code. Keeping in view the recent decision of the Supreme Court in Sital Singh Vs. State of Punjab, wherein the Court was also called upon to deal with the case of an Appellant aged about 19 years, as is the. Appellant before us, we sentence the Appellant to 7 (seven) years R.I. for his offence u/s 304, Part I.

In the result, the appeal is partly allowed by altering the conviction from Section 302 to Section 304 Para-I and by sentencing the Appellant for this offence to a terra of 7 years R.I. As the Appellant is in confinement from 30.12.79, the period already undergone would be set-off from this sentence. We place on record our appreciation for the assistance rendered by Shri Yadav and order for payment of two days'' hearing fee for him at the rate applicable to a Public Prosecutor.