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2004 DIGILAW 582 (GAU)

Sankar Garo v. State of Assam

2004-11-24

ANIMA HAZARIKA, P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. K. Bhattachaijee, learned Counsel for the accused Appellant and Mr. F.H. Laskar assisted by Ms. B. Saikia, learned P.P. 2. This appeal is directed against the Judgment and Order dated 29.04.2002 passed by the Sessions Judge, Kamrup, Guwahati in Sessions Case No. 156 (K) 99 (GR Case No. 484/97) convicting the accused Appellant Under Section 302 / 323 IPC and sentencing him to imprisonment for life for the offence Under Section 302 IPC and to pay a fine of Rs. 2000/- in default further imprisonment for three months. The accused Appellant was also sentenced to imprisonment for three months for the offence Under Section 323 IPC. Both the sentences were ordered to run concurrently. 3. The prosecution case in brief is that on 13.9.97 a simple fight ensued between two groups in a wine shop at Bhomgaon under Sonapur P.S. which led to the death of Maila Bhujal. The deceased along with Babul Sonari (P.W. 4), Puma Tumung (P.W. 2) and Some Sonari (P.W. 5) went to the market and while returning from the said market, they entered into the said shop for allegedly drinking water and it is deposed that thereafter an altercation took place with the accused Appellant Sankar Garo and his associates and in the process Sankar Garo assaulted Maila Bhujal who fell down in the Courtyard and when P.W. 2 protested, he was also assaulted causing injury on his person. As a result of kicking Maila Bhujal sustained injury and when he was removed to hospital on the way he succumbed to the injury whereupon the FIR was lodged by P.W. 4. 4. In the present case, there are four eye witnesses who had seen the occurrence in the person of P.Ws. 2, 4, 5 and 7. 5. P.W. 4 the informant has deposed that after they drank water in the shop of P.W. 6, a fight took place and the accused Appellant Sankar Garo assaulted the deceased in his hands and feet and when P.W. 2 tried to resist, he was also assaulted by the accused Appellant Sankar Garo. MailaBhujal sustained injuries on his hands and ear and as a result of which the deceased died whereupon the FIR (Ext. 6) was lodged and Ext. 2 is the inquest report. MailaBhujal sustained injuries on his hands and ear and as a result of which the deceased died whereupon the FIR (Ext. 6) was lodged and Ext. 2 is the inquest report. P.W. 5 is the brother of P.W. 4 and he has also supported the statement of P.W. 4, P.W. 2 was a member of the said group but admittedly he did not enter into the shop of P.W. 6 for taking water and he had gone to the other shop for keeping his bicycle and he did not see or witness the first part of the incident of assault but he found the injured lying in the Courtyard and thereafter when he protested the accused assaulted him and thereafter the accused again assaulted the deceased while he was lying on the ground. We find that this witness (P.W. 2) was examined by the doctor P.W.-8 Arun Chandra Kahta and he found as follows: Injury No. 1: Swelling on the left elbow joint pain. Injury No. 2: Pain on the left ear. Injury No. 3: No external injury. Nature of injury: Simple injury. Injury was occurred by blunt weapon. After giving first aid treatment the patient was sent to the Sonapur Police Station along with escort. Ext. 7 is my Medical Certificate and Ext. 7(1) is my signature. 6. Thus, we find from the evidence of the eye witnesses that when P.W. 2 protested, the accused Appellant assaulted him also along with the deceased and\this finds support from the medical evidence of P.W. 8. 7. Dol Rana Chetri (P.W. 7) is an independent witness who was also returning from the market and he has deposed that he saw the accused Sankar assaulting Maila Bhujal whereupon Maila Bhujal fell down. Thereafter the accused Sankar again assaulted him and while Maila Bhujal was taken to hospital, he died. 8. Kalicharan Basumatary (P.W. 1) is the Asstt. Professor of Forensic Medicine, Gauhati Medical College who held the autopsy over the dead body and found as follows: The male body of average build, eyes and mouth were partly open, dressed with black coloured longpant, contamitted with dried Bail at places. Abdominal wall distended. Rigormortis present all over the body. Liver-enlarged with 1450 ghm lacerated in the middle of the superior surface 8.3 cm. x 4.8 cms. Spleen-enlarged, weight-800 grams. Mark of ligature or neck dissection etc. No ligature mark in the neck. Abdominal wall distended. Rigormortis present all over the body. Liver-enlarged with 1450 ghm lacerated in the middle of the superior surface 8.3 cm. x 4.8 cms. Spleen-enlarged, weight-800 grams. Mark of ligature or neck dissection etc. No ligature mark in the neck. On dissection, neck tissues were healthy. Peritonoum-Pertonial cavity contain doted and liquid blood. Small intestine and its contents, congested, contain digested fludy materials. Large intestine and its contents-congested contain gas and fecalmater. Other internal orgains are congested and healthy. 9. In the opinion of the doctor, the death was due to haemorrhage and shock resulting from the injury of the liver. The injury was antemortem and consistent with blunt force impact. 10. We thus find that oral evidence as regards assault by hand and kick stands fully supported and corroborated by medical evidence on record. The learned Counsel for the Appellant has drawn our attention to the Inquest Report (Ext. 2) that the deceased was given a single kick on the thigh portion only as there was only one injury marked on the thigh. The medical evidence is not contrary to the inquest report in any manner. The doctor also did not find any external marks of injury on the liver. We also find that the deceased was dealt with a single below on the thigh first and the accused continued to assault the deceased whereupon the deceased fell down and the death was caused because of the fact that the deceased had enlarged liver and spleen and the minor impact on the above with force caused his death. In view of the medical and oral evidence on record, we have no hesitation whatsoever to hold that the deceased died as a result of the assault made by the accused Appellant Sankar Garo. 11. The next point for consideration is whether the act of the accused amounts to an offence Under Section 300 IPC or not. 12. The accused person did not use any weapon to assault the deceased and not to speak of any lethal weapon, the accused even did not use lathi etc. The incident took place in the Courtyard of the wine shop and we find materials to hold that members of both sides were under influence of liquor and an altercation took place between them. The accused gave a fist blow and thereafter he kicked the deceased which caused his death. The incident took place in the Courtyard of the wine shop and we find materials to hold that members of both sides were under influence of liquor and an altercation took place between them. The accused gave a fist blow and thereafter he kicked the deceased which caused his death. The medical evidence is material because the doctor found that both liver and spleen were enlarged. There is no evidence on record to show that the accused was conscious or he had any prior knowledge or information that the deceased has any enlarged liver and spleen and knowing that he had kicked the deceased on that part of the body. The assault made by the accused in the ordinary course of nature would not have led to death but the death of the deceased was caused because of enlarged liver and spleen. The facts and circumstances brought out from the records show that the accused had no intention to cause death and as such we hold that the act of the accused amounts to culpable homicide not amounting to murder which is punishable Under Section 304 Part-II IPC. 13. In the result, the appeal is partly allowed. The conviction Under Section 302 IPC is set aside and the accused is convicted Under Section 304 Part-II IPC. We have heard the learned Counsel for both sides on the point of sentence. We sentence the accused Appellant to undergo Rigorous Imprisormient for five years and to pay a fine of Rs. 5000/- in default to undergo further imprisonment for three months. 14. With the above modification in sentence, the appeal stands disposed of.