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2004 DIGILAW 517 (GAU)

Kulaborah v. State of Assam

2004-09-09

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. This is a case of unfortunate death of a house wife Punyalata Saikia. The incident took place on 3.7.91 while Punyalata was in the house of Kamala Kalita (PW 2). While the deceased was sitting and gossiping with PW 1, Satyabati Hazarika and Ors., it is alleged that the accused person came with an umbrella in his hand and pushed the umbrella in her lower abdomen causing injury. Punyalata went home and reported the matter to her son and other persons. Subsequently she was treated at local primary Health Centre where from she was referred to the Assam Medical College Hospital, Dibrugarh but on the way she succumbed to injuries. Thereafter FIR was lodged. During trial prosecution examined as many as 17 witnesses and on conclusion, the learned trial Judge convicted the accused Appellant Under Section 304 IPC and sentenced him to imprisonment for 7 years and to pay a fine of Rs. 2,000/- in default further imprisonment for one year. 2. PW 7 is the doctor N. Sonowal who held autopsy over the dead body and found as follows : External examination : A female dead body decomposition started, face is swollen, eyes are closed, mouth is open, postmortem discharge per nostrils present, tongue is inside. Injury 1x1cm size round bruise present in the right upper abdominal wall. Cranium and Spinal canal: Scalp skull, vertebrae healthy, Membrane, brain and spinal cord Decomposition started. Thorax: Right chamber of heart is full of blood and left chamber is empty. Decomposition started. Abdomen: Walls decomposition started. Peritoneum cavity contains pus, blood, foreign matters. Mouth, pharynx oesophagus decomposition started. Stomach and its contents decomposition started. Stomach contains undigested rice. 1/2x1/2 cm size perforation is present in lower anterior surface of the small intestine. Antemortem blood clots are present around the perforating area. Margins of perforation is irregular. Large intestines contains stools and gases. Liver spleen kidneys, bladder decomposition started. Organs of generation, externa and internal Decomposition started. Uterus is empty. Death, in my opinion, is due to shock and acute peritonitis as a result of perforation of the intestine. Perforation is due to forceful impaction of hard blunt substance on the abdominal wall. Age of perforation is 24/26 hours approximately. 3. Liver spleen kidneys, bladder decomposition started. Organs of generation, externa and internal Decomposition started. Uterus is empty. Death, in my opinion, is due to shock and acute peritonitis as a result of perforation of the intestine. Perforation is due to forceful impaction of hard blunt substance on the abdominal wall. Age of perforation is 24/26 hours approximately. 3. In view of the overwhelming medical and oral evidence on record the death of the deceased as such, is not disputed or challenged and the trial Court also rightly held that the deceased died as a result of the injury sustained. 4. In this case the incident took place in the house of PW 1 Satyabati Hazarika and we find that at the relevant time PW 1 and Smt. Budheswari Saikia, PW 16 were present in the house and were gossiping with the deceased. Thus, PW 1 and PW 16 are the two eye witnesses but they have not supported prosecution and they were declared hostile. As a matter of fact. As many as 17 witnesses were examined in the prosecution, five witnesses have been declared hostile. PW 1 has deposed about the presence of the deceased in her house at the relevant time but she claims that she was inside the house and she had no knowledge what happened. On the other hand, PW 16 has also deposed about the presence of the deceased. However, she stated that at the relevant time she was in the kitchen but the deceased Punyalata told that Kula Borah the accused came and punched her in the lower abdomen. PW 4 is the son of the deceased and PW 3 is Anr. co-villager but on being informed they came to the house of the deceased and found her lying with a pain in the abdomen PW 3 and PW 4 were informed by the deceased about the assault on her abdomen by the accused. We thus find that there is an oral dying declaration of the deceased. We have perused the evidence of the witnesses. There is nothing to disbelieve as regards the dying declaration. Moreover we find dying declaration stands supported/corroborated by medical evidence on record as regards the site of injury and weapon used. Hence relying on the said oral dying declaration, we hold that the accused Appellant did assault on the deceased which led to her death. 5. There is nothing to disbelieve as regards the dying declaration. Moreover we find dying declaration stands supported/corroborated by medical evidence on record as regards the site of injury and weapon used. Hence relying on the said oral dying declaration, we hold that the accused Appellant did assault on the deceased which led to her death. 5. In the present case we find that the trial judge has recorded order of conviction under Section 304 IPC without stating whether it is part I or part II IPC. Mr. Choudhury learned senior Counsel, on the other hand submitted that this is not a case Under Section 304 IPC as the accused never intended to kill the deceased nor he had knowledge that the act would cause death. The record shows that the deceased and the family member were not much warned about the injury and remained satisfied with the treatment given by the village Compounder. The external injury was 1x1 cm size round bruise present in the right upper abdominal wall only and the weapon was an umbrella. We find that sharp side of the umbrella was not used otherwise there could have some cut and lacerated injuries and the doctor was very specific that it was a blunt substance. Unfortunately, there was a perforation in the intestine and as it remained without treatment for nearly 48 hours the patient died. The accused gave a punch by the umbrella which he was carrying in the hand, it could not be said that the accused had any intention to kill the deceased or he had any knowledge that the deceased will die by such an assault. We, therefore, hold that the act of the accused does not construe an offence of culpable homicide not amounting to murder Under Section 304 IPC. Accordingly, the conviction is altered and modified to one Under Section 325 IPC. We have heard the learned Counsel for both sides. As regards the sentence, the accused Appellant is sentenced to under go imprisonment for 1 year and to pay a fine of Rs. 5,000/- in default further 1 month imprisonment. The accused Appellant is directed to surrender forthwith before the C.J.M., Tinsukia to serve out the sentence and to pay the fine. Send down the records.