Crl.A. 283/2003 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY THE HON’BLE MR.JUSTICE B.D.AGARWAL JUDGEMENT & ORDER The appellant herein stands convicted under Section 302 of the Indian Pe nal Code vide impugned judgment and order dated 29.1.2003 passed by the then Add itional Sessions Judge (Adhoc) Jorhat in Sessions Case No.46(J-J), 2001. Having so convicted for the offence of murder the appellant has been sentenced to under go imprisonment for life and also to pay fine of Rs.10,000/- with default stipul ation of further three years rigorous imprisonment. Being aggrieved with the co nviction and sentence the appellant has preferred this appeal. 2. Once the appeal was decided by a Division Bench of this Court and uphel d the conviction, albeit reducing the reducing the amount of fine and default se ntence, vide judgment and order dated 9.1.2006. The said judgment was challenged by the appellant before the Hon’ble Supreme Court in Criminal Appeal No.1027 of 2010. The appeal was allowed vide order dated 7.5.2010 directing the High Cour t to hear the appeal afresh after appointing an Amicus Curiae for the appellant. 2(a). As per the direction of the Apex Court Sri Kamal Agarwal, Advocate was a ppointed as Amicus Curiae and he was heard on behalf of the appellant. We have also heard Shri Z Kamar, learned public prosecutor for the State. We have also g one through the impugned judgment and the evidence proferred by the prosecution in the trial court. It may be mentioned here that the defence plea was of total denial and no evidence in defence was tendered. 3. As could be gather from the record, the prosecution examined altogether 11 witnesses to establish the offence. P.W. 1 is the father of the deceased . He was reported about the incident by P.W.3 that the appellant Bap Bora had injure d his son. Hearing this news, P.W.1 came running to the place of occurrence and on being asked, his son replied that accused Bap Bora had assaulted him. In thi s way the deceased had made a dying declaration before his father. 4. P.W.2 is an independent witness from the locality. This witness has stat ed that while she was standing on the gateway, she saw P.W.3, Makhon Dutta and f ew other people carrying an injured person on their shoulders. P.W.2 has further deposed that on being queried P.W.3 and other persons told her that the accused Bap Bora had assaulted the deceased. This witness was declared hostile by the p rosecution since she remained silent to depose that the deceased had himself na med the assailant to her. Be that as it may, the testimony of P.W.2 confirms the presence of P.W.3 on the spot and also about the first hand information that th e appellant was the assailant. 5. P.W.3, Makhon Dutta is the eye witness of the incident. This witness has deposed that at the relevant time he was sowing timber at a short distance from the place of occurrence. Suddenly he heard the outcries of the deceased Manik D utta and the deceased was shouting that Bap Bora had cut him. Hearing this P.W.3 rushed near the injured and found that the appellant was running away from the place of occurrence. According to this witness, P.W.2 was also seen near the pl ace of occurrence. P.W.3 has further deposed that while he was carrying the inju red on his shoulder he (deceased) also told him that he was assaulted by Bap Bor a. We do not see penetrating cross examination to P.W.3 to discard his testimony , rather the statements made in the cross examination further reinforces his ocu lar testimony. 6. P.W.4 is the wife of the deceased. This witness has also deposed that he r husband was brought home in injured condition by P.W.3. Seeing her husband in injured condition the witness became unconscious and later on heard that the app ellant had assaulted her husband. 7. P.W.5 is another eye witness to the occurrence. This witness has deposed that at about 4.30 pm when he had just returned from Majuli by ferry and the m oment he got down from the boat, he saw the appellant Bap Bora and one Kancha Ne pali attacking his elder brother.According to P.W.5, the appellant hacked his de ceased brother with a dao and Kancha was standing nearby with another dao. P.W.5 has cofirmed about the presence of P.W.6 Nilomoni at the place of occurrence an d also arrival of P.W.3 and another person at the scene within moments. In the c ross examination P.W.5 has clarified that the deceased was his cousin and has re iterated that the assailant was carrying a ’Khukri’ which is also called as ’dao ’. 8. P.W.6 is the witness whose name has been described by P.W.5. This witnes s has also deposed that on the relevant day he had gone to river bank to bring c ertain articles in his Push-cart. At that time people were getting down from the ferry and he was loading articles in his handcart. At that time the witness hea rd a commotion at a distant of 100-150 metres and noticed that the appellant wa s attacking the deceased with sharp weapon and one Kancha was standing nearby wi th a dao in his hand. P.W.6 has further deposed that since deceased was his rela tive he went near him and then Kancha (since acquitted) charged him with a dao a nd out of fear he (P.W.6) retreated from the scene. This witness was also not gi ven any suggestion that the appellant has been falsely implicated in the offence of murder due to any previous grudge or enmity. 9. The testimony of P.W.7 confined to the fact that he saw P.W.3 carrying t he deceased on his shoulder. On the way, P.W.7 also helped P.W.3 to take the inj ured to his home. The only material evidence coming from the mouth of P.W.7 is to the fact that the injured was still in sense. 10. P.W.8 is an Executive Magistrate who had conducted the inquest on the de ad body and P.Ws 10 and 11 are police officers. 11. Sri Agarwal, learned Amicus Curiae has submitted that P.W.3 cannot be co nsidered as an eye witness to the occurrence. According to Sri Agarwal, had P.W. 3 seen the appellant assaulting the deceased, there would have been no reason to enquire from the deceased as to who had cut him. In our considered opinion, ev en if P.W.3 is not considered as an eye witness at-least the name of the assail ant was disclosed to him by the deceased/ injured himself. In our considered opi nion, disclosing name of the assailant by the deceased is certainly a serious an d vital incriminating evidence. 12. Be that as it may, the defence failed to impeach testimonies of P.Ws 5 a nd 6, who have directly implicated the appellant in the offence of culpable homi side. It is the settled position of law that quality of evidence matters, not th e quantity. We reiterate that not a single witness was given any suggestion in t he cross examination that he was falsely framed in the case for any ulterior mo tive. Considering all the aspects, we find no difficulty to hold that the offenc e was committed by the appellant herein and none else. 13. Coming to the question as to whether culpable homicide of Manik Dutta a mounts to murder, we have to take into consideration the autopsy findings as wel l as pre-conditions laid down under Section 300, IPC, which defines the offence of murder. 14. During autopsy, the medical officer found that as many as six numbers of incised and lacerated wounds on different parts of the body. The vital wound wa s noticed on the left parietal region, which was 7 cm x 2 cm size and bone deep. This wound had fractured underlying parietal bone. In the opinion of the doctor , the injuries were antemortem in nature and the death was caused due to injuri es sustained by the deceased. Going by the number of injuries, situs of the woun ds inflicted upon the deceased and the nature of the weapon used in the assault, we find no difficulty to hold that the appellant had definite intention to kill the deceased. 15. In the criminal jurisprudence, it is mandatory for the prosecution to es tablish all the ingredients of Section 300 IPC to obtain conviction of the accus ed under Section 302 IPC. In other words, it is also incumbent upon the prosecut ion to show that none of the five statutory Exceptions, incorporated in Section 300, is attracted. In other words, if the evidence shows existence of any of th e five Exceptions the offence of culpable homicide would be treated as culpable homicide not amounting to murder. 16. In the case before us, Exception-1 appears to be relevant. The evidence discloses that the deceased was none else but own brother-in-law of the appellan t. To say it differently, the deceased had married the sister of the appellant. It is true that proof of motive is not sine-qua non. If the prosecution otherwi se proves the offence with direct and conclusive evidence, still motive is a rel evant factor to determine the intention of the offender. It is said that no one kills a person without any motive or cause. If the prosecution brings on record the motive for the offence it strengthens the order of conviction. In the case b efore us, the witnesses are stoically salient about the motive for the appellant to kill his won brother-in-law, which has widowed his own sister. Similarly the witnesses have also not spoken about the genesis of the incident. However, afte r scanning the record, we stumbled upon the index of the sketch map of the scene , wherein a ’note’ has been appended by the Ivestigating Officer. In the said no te the Investigating Officer has recorded that both the appellants and the decea sed were at loggerhead due to long standing disputes, enmity and cases and count er cases were also filed by each other. Not only that as per the note, once a mu tual fight had also taken place and then also deceased was grievously injured. I n our considered opinion, if the aforesaid findings of the I.O. is overlooked it may result in mis-carriage of justice. 17. Even for a moment it is presumed that the I.Os noting and findings have no evidentiary value, at-least the statement given by the wife of the deceased ( P.W-4) can certainly be taken into consideration to hold that the offence was co mmitted under provocation. P.W.4 has deposed in the chief examination itself tha t her husband used to assault her physically. In our considered opinion, no brot her would tolerate insult and physical assault upon his married sister. We have already observed earlier that prosecution had failed to bring on record the moti ve for the crime as well as genesis of the offence. However, the noting of the I.O. in the inquest report coupled with the statement of P.W.4, we find no diffi culty to hold that the offence of culpable homicide was committed under provocat ion, having lost the power of self control due to inhuman torture by the decease d upon the appellant’s sister. 18. Having regard to all aspects, the conviction of the appellant is convert ed under Section 304 Part-I of the Indian Penal Code from under Section 302 IPC. Keeping in mind the circumstances, under which the offence of culpable homicide was committed, we are persuaded to reduce the sentence from 10 years to 8 (eigh t) years rigorous imprisonment with fine of Rs.1000/-. In default of payment of fine, the accused shall undergo further rigorous imprisonment for one month. 19. With the aforesaid modification in the conviction and sentence, the appe al stands dismissed. 20. The defence lawyer fee is assessed at Rs.5000/- (Rupees Five Thousand) f or rendering his valuable services as Amicus Curiae. 21. Send down a copy this judgment to the trial court immediately and on rec eipt of this judgment the trial court shall issue modified custody warrant to t he concerned jail authority.