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2004 DIGILAW 355 (GAU)

Chandan Gogoi v. State of Assam

2004-05-20

I.A.ANSARI, P.G.AGARWAL

body2004
JUDGMENT P.G. Acarwal, J. 1. Heard Mr. J.M. Choudhury, learned senior Advocate assisted by Mr. A.M. Bora, learned counsel for the appellant and Mr. P.C. Gayan, learned Public Prosecutor. 2. The appellant Sri Chandan Gogoi along with two others namely; Rupjyoti Boragohain and Gunapratim Gogoi was tried by the Sessions Judge, Lakhimpur in Sessions Case 86(NL)/98 for commission of the offence under Section 302/34 IPC. On conclusion of the trial, the accused Rupjyoti Boragohain was acquitted whereas accused Gunapratim Gogoi was convicted and sentenced under Section 323 IPC. The said Gunapratim Gogoi is not before us. The present appellant Chandan Gogol was convicted under Section 302 IPC and sentenced to imprisonment for life and hence the present appeal. 3. The prosecution version of the occurrence is that on the evening 19.9.96 the members of the "Ghillamara Anchalik Chatra Sanstha organised a feast at the PWD Inspection Bungalow situated at Ghillamara Choukham Ghat gaon. While the members were enjoying the feast, some disturbances and noises were created which led the chowkidar Lila Gogoi to intervene and he requested the persons present there to enjoy their feast and leave the place whereupon the said Lalit Gogoi was assaulted and when he took to his heels he was chased by a group of 15 persons. When Lila Gogoi reached near his quarter, the wife and brother-in-law of Lalit Gogoi came out and pleaded for mercy. Lila Gogoi was released and he fled the scene. However, the mob bounced upon Babul Gogoi and, 'Gunapratim Gogoi dealt a fist blow and the present accused appellant Chandan Gogoi hit him on the head with a bamboo post. The injured Babul was removed to the hospital, where he succumbed to the injuries. 4. PW 7 is Dr. Sona Ram Saikia. who held autopsy over the dead body and found the following injuries on the person of the deceased. "One lacerated injury over the vertex (Scalp) anterior-posterior direction (3" x ½") up to bone depth. Blood clot with left upper eyelid swollen and blackish. There is one lacerated injury over the left frontal bone anterior-posterior about 2½" length up to the left orbital margin. Duramatter is ruptured. A big haematoma underlying the fractured bone. Brain tissue is compressed by the big haematoma. A stout male body rigor mortis present not decomposed. Blood clot with left upper eyelid swollen and blackish. There is one lacerated injury over the left frontal bone anterior-posterior about 2½" length up to the left orbital margin. Duramatter is ruptured. A big haematoma underlying the fractured bone. Brain tissue is compressed by the big haematoma. A stout male body rigor mortis present not decomposed. With lacerated scalp injury and fracture of left frontal and left parietal bone and a huge haematoma underlying the fracture compressing the brain. The injury was ante mortem in nature." 5. In the opinion of the doctor, the death was due to shock and haemorrhage resulting from the injuries. The death of deceased as a result of the injuries sustained on the head has not been disputed. 6. The sole eyewitness of the occurrence is Smt. Tutu Moni Gogoi PW 3, sister of the deceased. She has stated that at the time of occurrence she was in the house along with her brother Babul and the later seeing her husband being chased by the accused persons called her out and thereafter she sought mercy from the mob which included the accused Chandan Gogoi and other accused persons. On her request her husband was released and thereafter the husband fled the scene. However, Gunapratim first dealt a fist blow on the eye of Babul and thereafter accused Chandan hit Babul on the head with a bamboo stick. The eyewitness was subjected to cross-examination but she stood her ground and the defence has failed to dislodge her testimony. Her evidence stands corroborated by medical evidence on record and the trial court, for the reasons recorded in the impugned judgment, has relied on her testimony. On perusal of her testimony and in the light of other evidence and materials available on record, we are of the view that PW 3 is the only reliable witness and her testimony can be acted upon. 7. The learned counsel for the appellant, however, submits that even if the statements of PW 3 is accepted the alleged act of the accused, will not amount to killing of the deceased. It is submitted that the accused was not armed and the piece of the dried split bamboo was picked up at the spot and the accused appellant dealt a single blow on the head. If the accused had the intention to kill the deceased, nothing prevented him from striking again. 8. It is submitted that the accused was not armed and the piece of the dried split bamboo was picked up at the spot and the accused appellant dealt a single blow on the head. If the accused had the intention to kill the deceased, nothing prevented him from striking again. 8. We find force in the above submission, as there is nothing on record to show that the accused was prevented either by PW 3 or other person from making further assault(s) on the deceased. The weapon of assault was also seized by the police and it happens to be a dried piece of split bamboo measuring 5'3" long. On consideration of the medical evidence on record it is seen that this is a case of single injury on the head but unfortunately for the deceased it proved to be fatal although there was no fracture of the bone as such. 9. The learned counsel for the appellant placing reliance on a decision of the Apex Court in the case of Sardul Singh v. State of Haryana has submitted that at best the act of the accused will amount to an offence under Section 325 IPC. The Apex Court has observed : "The intention to cause death or cause such, bodily injury as was likely to cause death in the normal or ordinary course cannot be readily imputed to the accused. Taken individually or even jointly together, if at all the common intention could have been merely to commit an assault and inflict some injuries but not to cause such injuries as would or is likely to cause or result in death. Therefore, A1 and A3 could not be condemned to have committed the murder, though that seems to have been the unintended ultimate result. On the facts proved, the accused could only be safely convicted under Section 325 IPC and not under Section 302 IPC." 10. Coming to the case in hand, we find that the accused along with his friends were enjoying, the evening by way of feast at the Inspection Bungalow and the chowkidar also did not object to that. He only requested them to keep peace, whereupon he was assaulted and however he was saved at the intervention of his wife and thereafter the brother-in-law of the chowkidar was assaulted. 11. He only requested them to keep peace, whereupon he was assaulted and however he was saved at the intervention of his wife and thereafter the brother-in-law of the chowkidar was assaulted. 11. In the case of Mahesh Valmiki v. State of Madhya Pradesh the Apex Court had observed that there is no principle that in all cases of single blow Section 302 IPC is not attracted. Single blow in some cases entail conviction under Section 302 IPC and in some cases under Section 304 IPC and in some other cases under Section 325 IPC. 12. Considering the facts and circumstances of the present case, the manner in which it led to the assault of the deceased, the nature of injury etc. we are of the view that the act of the accused does not constitute the offence of culpable homicide amounting to murder punishable under Section 302 IPC. Accordingly the conviction and sentence entered into by the trial court under Section 302 IPC is altered to one under Section 304 II IPC. 13. We have heard the learned counsel for both sides and upon consideration of the relevant facts; we sentence the accused appellant to imprisonment for a period of four years and to pay fine of Rs.1000 in default further imprisonment for 15 days. The period undergone shall be set off under Section 428 Cr.P.C.