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2006 DIGILAW 408 (GAU)

Sitaram Kurmi v. State of Assam

2006-05-03

ANIMA HAZARIKA, P.G.AGARWAL

body2006
JUDGMENT P.G. Agarwal, J. 1. In this case Dr. S. Rahman was appointed as amicus curiae but as prayed for one Mr. R. Surana was appointed as amicus curiae and we have heard Mr. Surana at length and we have also heard Mr. Das, learned RP Assam. 2. In Sessions case No. 8/95, 3 accused appellant were tried and convicted under Section 302/34IPC and sentenced to imprisonment for life and to pay a fine of Rs.500 and in default further imprisonment for one month. 3. The prosecution allegation in short is that on 19.7.91 at about 8 A.M. while the informant Rambriz Rikiason along with his father Gopal Rikiason and uncle Narayan Rikiason were working in their field, the accused appellants armed with Lathis, Dao etc came there and assaulted all of them and Sri Gopal Rikiason was taken to the Hospital for injuries. 4. The Autopsy was conducted by Dr. K.K. Chakravorty P.W.4 which is as follows: One lacerated injury situated at the parietal area of his scalp 4 cm x 2 cm x scalp deep. Haematoma under the scalp on both sides in front parietal area more on right side. Membrane congested, sub-dural haemorrhage on both sides of the brain present. The injuries were fresh and ante mortem. Death on as due to haemorrhage and shock as a result of ante mortem, intra-cranial haemorrhage, cause by blunt object 5. In view of the oral and medical evidence on record, the findings of the trial court that this is a case of homicidal death is not disputed. 6. In this case we find that there are two eye witnesses namely Lakxmi Rani, P.W. 5 the widow of the deceased Rampbriz and Narayan P.W. 6 the brother of the deceased. 7. P.W. 1 Rambriz and P.W. 6 Narayan were working in the field and they have deposed that the land in question belonged to them, and while they were working there the accused persons came and assaulted Gopal and when protested by P.W.I and 6, the accused persons also assaulted them. Thereafter, they went to Dhowarband Police Chaki. The Police sent them to the Silchar Medical College Hospital where Gopal succumbed to his injuries. 8. P.W.I and 6 claimed that they had also sustained injuries which is supported by Dr. Sadagar Deuri, P.W. 7 who had examined them and found simple injuries on the person of P.Ws 1 and 6. Thereafter, they went to Dhowarband Police Chaki. The Police sent them to the Silchar Medical College Hospital where Gopal succumbed to his injuries. 8. P.W.I and 6 claimed that they had also sustained injuries which is supported by Dr. Sadagar Deuri, P.W. 7 who had examined them and found simple injuries on the person of P.Ws 1 and 6. These injuries were caused by blunt weapon. 9. We also find that the witnesses reported the matter to the other co-villagers immediately after the incident which has been supported by P.W. 3 Cholatal Kurmi. 10. Further, we find that Matiyur Rahman Laskar P.W. 11 has deposed that on the day of occurrence at around 12 noon P.W. 1 and 6 and the deceased came to Police out post with injuries and they were sent to Silchar Medical College Hospital for treatment and G.D. entry was made to that effect. 11. We also find that there is ample evidence on record that the accused persons in furtherance of their common intention assaulted the deceased causing his death. 12. Learned Counsel has further submitted that there was no intention to cause death and it was a simple quarrel or mar pit took place in respect of the land over which the deceased was found in possession. We find from the evidence that there was cross-examination as regards the ownership or possession of the land. Although, P.W. 2 Girija Nath Sen claimed that the land was in their possession. He categorically stated that they have no documents of the ownership of the land. We, therefore find that the incident took place due to the dispute of the land. 13. Moreover, we find that this is a case of causing single injury on the head with the help of lathi. Although the witnesses have stated that the accused persons were armed with dao, lathis, etc., and even claimed that the deceased as well as the witnesses were assaulted with dao. We find that none of these persons sustained any cut injury on their persons. We thus held that the use of dao was exaggerated by the witnesses. 14. We, thus, find that injuries were caused by lathis the blunt weapon and admittedly which is sustained by the injured. 15. In the case of Mahesh Balmiki v. State of M.P. reported in 1999 CriLJ 4301 the apex court held that: 9. We thus held that the use of dao was exaggerated by the witnesses. 14. We, thus, find that injuries were caused by lathis the blunt weapon and admittedly which is sustained by the injured. 15. In the case of Mahesh Balmiki v. State of M.P. reported in 1999 CriLJ 4301 the apex court held that: 9. Advertising to the contention of a single blow, it may be pointed out that there is no principle that in all cases of a single blow Section 302 IPC is not attached. A single blow may, in some cases, entail conviction under Section 302 IPC, in some cases under Section 304 IPC and in some other cases under Section 326 IPC. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had the intention to kill the deceased. In any event, he can safely be attributed the knowledge that the knife blow given by him was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. 16. In this case we find as per the prosecution version the accused persons were armed with deadly weapon and the deceased as wall as the witnesses were unarmed and if the accused persons has the intention to cause death nothing prevented them causing more than one injury. 17. More over considering the fact that quarrel took place on the same land dispute between the parties and the accused persons did not take any advantage. 17. More over considering the fact that quarrel took place on the same land dispute between the parties and the accused persons did not take any advantage. In the case of Gyan Ram v. State of Haryana 1995 Cri LJ 4160, the apex court held that even a single blow with hammer on the head of the deceased the offence is one under Section 304 part II IPC. 18. In view of the above facts and circumstances of the present case, the accused persons constituted an offence punishable under Section 304 Part II IPC and accordingly the said conviction is modified and altered to one under Section 304 Part II IPC. The accused persons are in Jail custody for more than 8 years and hence we sentence the accused persons to the imprisonment for a period of already under gone by them. They are to be released forthwith, if they are not wanted in any other case. 19. Send down the record. 20. Fees of the amicus curiae is fixed at Rs.3,000.