JUDGMENT
D. Biswas, J.
1. This appeal is directed against the judgment dated 14th July, 2004 passed by the learned 1st Addl. Sessions Judge (Ad-hoc), Sibsagar in Sessions Case No. 38 (S-C)/2003 corresponding to the original Sessions Case No. 57 (S-C)/2003. By the impugned judgment, the appellant has been convicted by the learned Sessions Judge for causing death of his father Normal Gogoi on 23-9-2000 at about 7.30 PM.
2. Shri Robin Gogoi lodged an ejahar depicting the incident to the Officer-in-Charge of Sonari Police Station on 24-9-2000. The ejahar reveals that the appellant Bhaba Gogoi caused the death of his father Normal Gogoi by hacking him with a dao. The police registered a case and proceeded with the investigation. During the course of investigation, the investigating officer prepared the inquest report, forwarded the dead body for post mortem examination, recorded the statement of the witnesses and, on his transfer, submitted the Case Diary to the Officer-in-Charge of the Sonari Police Station. Accordingly, the charge sheet was filed against the appellant Under Section 302 IPC. On commitment, the learned Sessions Judge framed charge against the appellant Under Section 302 IPC for causing death of his father Normal Gogoi intentionally. The prosecution examined as many as 9 witnesses in support of the prosecution while the defence examine none. The defence plea is that the appellant had to retaliate when his father wanted to assault him with a pruning knife after assaulting his mother.
3. We have heard Mr. P.K. Deka, learned Amicus Curiae and also Mr. K. Munir, learned PP Assam.
4. The learned Amicus Curiae submitted that the accused-appellant was 21 years old at the time of occurrence and could not tolerate the insurmountable torture upon his mother and sister by his father Nomal Gogoi. On being protested, his father wanted to assault him with the said knife. He had no option but to retaliate and, in the process, his father sustained injuries and died.
5. The learned PP submitted that the evidence on record clearly establish that the appellant had caused the death of his father, but the circumstances surface from the evidence on record show that the death was caused neither intentionally nor with the knowledge. Mr. Munir admits it to be a case of culpable homicide not amounting to murder.
6. PW9 Dr. Utpal Bora who had performed the post mortem examination noticed the following injuries on the person of the deceased:
Injuries:
1. Incised wound over left side at the lever of ear posteriorly size 4″ x 2½” x 2″.
2. Incised wound, right side of face. Size 2″ x 3 cm x 2 cm.
3. Incised wound extending from upper forehead, up to middle of right ear. Size 3″ x 2″x 2″.
4. Incised wound just above the right eyebrow. Size 2″ x 1½ ” x 1″.
5. Incised wound on the upper arm right side in front. Size 3″ x 2″ x 2″.
6. Multiple incised wounds over back of left lower thigh and back of upper leg (numbering 5). All are size 2½ x 1″ x 1″. One above the back of knee and other 4 below the back of knee.
7. Incised wound back of right arm. Size 3″ x2″ x 1″.
7. In the opinion of the doctor, the death of the deceased was due to brain injury and the hemorrhage and shock resulted from the injuries sustained by him before his death. The evidence of P.W. 9 read with the Ext. 2, the inquest report, establish the death of Normal Gogoi.
8. P.W. 1, Sri Jalaluddin Ahmed, Judicial Magistrate had recorded the statement (Ext. 1) of Smt. Renu Gogoi, mother of the appellant, Under Section 164, Cr. P.C. P.W. 2 Allur Rahman is not an eye-witness. He stated that a pruning knife was lying near the body of Nomal. He saw it when he visited the place of occurrence. He is also a witness to the inquest report and the seizure list, which are marked as Exts. 2 and 3 respectively, P.W. 3 Pabitra Gogoi is a hearsay witness. He went to the place of occurrence after getting information of the incident. He is also a signatory to the inquest report and the seizure list. P.W. 6 Robin Gogoi is a reported witness and signatory of the inquest report and the seizure list P.W. 7 Aghnu Mura stated nothing significant either for the prosecution or for the defence.
9. P.W. 4 Smt. Renu Gogoi is the mother of the appellant and wife of the deceased. She stated that about 3 years ago, in one night, her husband assaulted her for not serving salt with rice. He chased her with a pruning knife. The appellant at that time returned from market. Her husband also chased him. She left for Police Station and it is not known to her who had caused the death of her husband. This witness was declared hostile by the prosecution. She admitted before the learned Magistrate that the appellant, after taking the pruning knife from his father, assaulted him (father).
10. P.W. 5 Smt. Deepti Gogoi is the daughter of the deceased and sister of the appellant. She stated that when her father assaulted her with a ‘echari’ (a goading stick), she left the house and went to the house of a girl friend in the neighbourhood. Thereafter, she came to know that her brother, the appellant, had killed her father.
11. The evidence of P.W. 4 Smt. Renu Gogoi, mother of the appellant, clearly suggests that the appellant was not in a position to adjust with the vicious atmosphere in the family as his father was in the habit of assaulting his mother. The occurrence took place when the deceased started assaulting the mother of the appellant for her failure to serve salt along with the rice. The evidence further shows that the deceased had also chased the appellant with a pruning knife and, in the process, Nomal Bora was killed.
12. The appellant, during the course of his examination Under Section 313, Cr. P.C, explained the circumstances in which he had to kill his father. The answer given by him in response to the question No. 21 Under Section 313, Cr. P.C. reads as follows:
Ans.– My father was assaulting mother when I reached there. Seeing my father hitting mother with the blunt side of the pruning knife I asked father as to why he always used to pick up a quarrel. I got myself between the two to disengage them from quarrelling. Father raised the pruning knife to hit me too with it when I gave him a push he fell down on the floor of the kitchen. The pruning knife too fell off his hands. Standing up when father once again tried to hit me I snatched the pruning knife from his hands. I injured him by cutting first in the right leg with the pruning knife. I do not know how many blows I dealt on him thereafter. At that time mother Renu Gogoi was outside the house. Thereafter I went to the house of Pramod Gogoi. From there I went to Sonari thana. Mother also went to the thana after me. I had left the pruning knife in the place of occurrence.
13. Exception 1 to Section 300, IPC provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. The circumstances, which surface from the evidence on record are such that a boy who loves his mother and sister is bound to be provoked, resulting, in loss of self-control. His own life as well as the life of his mother was in danger. The tender age of the appellant at the relevant point of time in the given situation has also to be taken into consideration. Having regard to the surrounding circumstances and the age of the appellant, we are of the opinion that the defence has been able to establish that the offence committed by the appellant cannot be treated as a culpable homicide amounting to murder. However, he had to some extent exceeded his right of self-defence. Therefore, the conviction Under Section 302 cannot be sustained. We convert the conviction Under Section 302, IPC to one Under Section 304 Part II, and convict the appellant accordingly, on such conviction, we sentence the appellant to 3 years R/I.
14. The appeal is thus partly allowed.
15. For the assistance rendered by Mr. Pankaj Kumar Deka, learned Amicus Curiae, he be paid a sum of Rs. 3,000/- as remuneration.