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2002 DIGILAW 244 (GAU)

Shyam Kanti Sinha v. State of Assam

2002-06-06

D.BISWAS, J.N.SARMA

body2002
D. BISWAS, J- On conclusion of trial in Sessions Case No. 41/99, the Additional Sessions Judge, Cachar at Silchar by the judgment dated 15.10.2001 convicted the appellant Shyam Kanti Sinha under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life and to pay a fine of Rupees one thousand, in default further rigorous imprisonment for 6 (six) months. 2. We have heard Shri J.M. Choudhury, learned senior counsel for the appellant and Mr N. Mohammad, learned Public Prosecutor for the State of Assam.1 At the very beginning, Shri Choudhury in all fairness submitted that involvement of the appellant in this case is not being disputed, but according to him the evidence on record make out a case under Section 304 Part-II and not under Section 302 of Indian Penal Code. 3. The complainant, Sri Dhaneswar Sinha lodged the First Information Report on 15.3.98 before the police alleging that on 14.3.98, in the premises of 1005 Chengkuri Primary School, the appellant assaulted his son on the head with a wooden batten and grievously injured him. It was also mentioned that his son was admitted to Silchar Medical College Hospital and was in critical condition. 4. On commitment, the learned Sessions Judge framed charge against the appellant under Section 302 IPC for causing death of Sri Amit Sinha intentionally and, on conclusion of trial awarded the verdict of guilt. 5. PW-1 is the father of the deceased. According to him, Amit was brought home in an autorickshaw in injured condition and the persons who had bought him home reported that hewas assaulted by the appellant with a piece of wood. He got his injured son admitted at the Silchar Medical College Hospital where he regained his sense and told him that Shyam Kanti Sinha assaulted him on his head with a piece of wood. He has been supported by PW-2, mother of the deceased, who also stated that her son Amit on being asked told her that the appellant Shyam Kanti Sinha had assaulted him on his head with a piece of wood. PW-4 Guru Das Sing who had immediately entered the house of PW-1 deposed that injured Amit told him in a low voice that the appellant had assaulted him with a wooden piece. PW-4 Guru Das Sing who had immediately entered the house of PW-1 deposed that injured Amit told him in a low voice that the appellant had assaulted him with a wooden piece. Besides the statement of PWs 1, 2 and 4, PW.3 Divya Kanti Sinha stated that he along with others were near Changkuri No. 1005 LP School and suddenly heard a laud cry 'Maa' from inside the school. They rushed to the school and entered a room where they saw accused Shyam Kanti Sinha giving blow on the head of the deceased by a 'Borga' (a wooden piece). They prevented the accused from giving further blows and snatched away the 'Borga'. The evidence of PWs 1, 2 and 4 read with the evidence of PW-3 directly establish the charge against the appellant. There is nothing in the cross-examination to show that the above witnesses are not worthy of credence. 6. We have, therefore, no doubt that the appellant has been rightly held guilty, in the instant case by the learned Trial Judge. 7. Now, we propose to consider the contention of Shri Choudhury, learned senior counsel that this is a case for conviction under Section 304, Part II, and not under Section 302 of the Indian Penal Code. In support of his contention, Shri Choudhury has referred to a decision of the Apex Court in Sarup Singh, appellant-Vs-State of Haryana, represented by the Home Secretary, respondent, 1995 Crl. J. 4168. For better appreciation, we quote here-in-below the observations of the Apex Court recorded in paragraph-4 of the judgment. Para 4 reads as follows:- “4. According to the evidence of PW-11 S.K. Khanna of Maulana Azad College, who conducted the post-mortem examination on the deadbody of the deceased, who died on 25.1.1989 about 4 months after the occurrence, the cause of death was hydrocophalus and septicimia. According to Dr. Gupta, PW-2, who had operated upon the deceased on 15.9.1988, during the operation he had found a fracture of bone of right temporo-parietal region. According to Dr. Gupta, PW-2, who had operated upon the deceased on 15.9.1988, during the operation he had found a fracture of bone of right temporo-parietal region. Keeping in view this medical evidence and the established facts and circumstances of the case on record, we are of *the opinion, that the appellant can be clothed with the knowledge that the injury that he Was causing to Jai Karan, with a hammer, on Ms head, a vital part of the body, was likely to cause his death, through without any intention to cause such death or injury as was likely to Cause his death. He gave a single blow on the head of the deceased. The offence would, therefore, squarely fall under S. 304, Part-II, IPC. We, accordingly hold him guilty of the said offence and convict him accordingly." 8. It appears from the above judgment that in the case before the Supreme Court the accused had given single blow on the head of the deceased and, that too, with a hammer. The Supreme' Court ruled that since there was no evidence of any attempt to give subsequent blows, the intention to cause death could not be attributed. Considering the circumstances of the case at hand, we find force in the submission of Sri Choudhury; learned counsel that the appellant's conviction be altered to one under Section 304,'Part-it. In our opinion, ends of justice will be; met if the appellant in the instant case is convicted under Section 304, Part-II IPC. Mr Nur Mohammad, learned PP did not raise any objection to the above submission. 9. Consequently, the conviction of the appellant under Section 302 of the Indian Penal Code is hereby modified to one under Section 304, Part-II of the Indian Penal Code' and the appellant is sentenced to rigorous imprisonment for 5 (five) years and to pay a fine of Rs. 5,000/-, in default, to further rigorous imprisonment for four months. 10. Neddless to say the period spent by the appellant in custody in connection with this case be set off from the sentence awarded. It is submitted that the appellant was in custody from 20.3.98 to 18.5.98 and from 15.10:2001 till date. It be set off accordingly after verification of records. The appeal accordingly stands disposed of.