Abdus Samad vs State (2021) 73 DLR (AD) 128

 

Fact of the Case:

Appellate Abdus Samad intentionally hit Khorshed on the head with a shabol, intending to cause grievous injuries, which were likely to cause the death. But at that moment when the fight started suddenly between the parties, the appellant lost his self control and hit with shabol, which was not pre-planned. The act of the appellant falls within the ambit of exception No. 1 and 4 of section 300 that is punishable under section 304 Part- I which provides that the act by which the death is caused is done with intention of causing death or such bodily injury as is likely to cause death. The High Court Division erred in convicting the appellant under section 302/148 of the Penal Code in holding that the weapon used was shabol.

 

The accused dealt shabol blow on the vital part of the body. All these show that the accused had intention to kill khorshed. The High Court Division failed to consider that though the appellant has caused the death with the intention, he did the same in a sudden fight, in the hear of passion being provoked by the victim.

 

The appellant filed a Criminal Appeal, which arises out of leave granted in Criminal petition for Leave Appeal No. 187 of 2009 on 27-11-2011 against the judgment and order dated 22-7-2008 passed by the High Court Division in Criminal Appeal No. 3701 of 2004.

 

Issues of the case:

 

1) According to the facts of the case, what can it be called, murder or culpable homicide?

 

2) If it is culpable homicide then what will be the argument under the Penal Code?

 

Decisions:

The appeal is dismissed with the modification of the sentence of the appellant. After the alter the conviction of the appellant from section 302 to section 304 Part- I and reduce the sentence to rigorous imprisonment for 10 (ten) years with a fine Taka 1000 ( one thousand), in default to pay the fine, the appellant shall suffer rigorous imprisonment for 15 ( fifteen) days more.

 

Justifications:

1) Culpable homicide has been defined in section 299 of the Penal Code – whoever causes death by doing an act with the intention of causing death, or with the intention of causing bodily injuries as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

2) All murders are culpable homicide but all culpable homicide are not murder. Excepting the General Exceptions attached to the definition of murder an act committed either with certain guilty intention or with amounting to murder. If the criminal act is done with the intention of causing death then it is murder. In all other cases of culpable homicide, it is the degree of probability of death from certain injuries which determines whether the injuries constitute murder or culpable homicide not amounting to murder. If death is likely to result from the injuries it is culpable homicide not amounting to murder, and if death is the most likely result, then it is murder.

3) The exceptions No. 1 and 4 to section 300 of the Penal Code –

Exception -1: 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 or cause the death of any other person by mistake or accident.

Exception -4: Culpable homicide is not murder if it is committed without premeditation in a sudden quarrel and with out the offender's having taken undue advantage or acted in a cruel or unusual manner.

Cases Cited :

State vs Tayeb Ali, 40 DLR ( AD) 6, State of Andhra Pradesh vs Rayavarapu Punnayya, AIR 1977 SC 45, Khalil Peada vs State, 70 DLR (AD) 126 and Superintendent Remembrancer of Legal Affairs, Government of Bangladesh vs Siddique Ahmed, 31 DLR (AD) 29.

Written by---
MST.Sultana Yasmin
Department of Land Management and Law
Jagannath University, Dhaka