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2007 DIGILAW 364 (GAU)

Tarani Kalita v. State of Assam

2007-05-17

AFTAB H.SAIKIA

body2007
1. Heard Mr. B.K. Mahajan, learned counsel for the appellant also heard Mr. D. Das, learned Public Prosecutor, Assam. 2. This appeal has been directed against the judgment and order dated 31,10.2003 passed by the learned Ad hoc Additional Sessions Judge No. 1, Kamrup in Sessions Case No. 193/2000 convicting the appellant under section 304, Part-II and sentencing him to undergo simple imprisonment ('S.I.') for 8 years and to pay fine of Rs. 5,000 and in default in payment of fine further S.I. for another 6 months. 3. The fact of the case in brief as portrayed by the prosecution needs to be noticed : An FIR was lodged by PW.1, Smt. Harabala Kalita with Sualkuchi police station alleging that on 31.12.1992 at about 9.00 AM a brawl took place between the deceased Moneswar Kalita and the appellant Tarini Kalita both were being the brother-in-law of PW. 1 relating to a matter of payment of electricity bill and within the continued exchange of words between them the appellant Tarini Kalita all of a sudden inflicted a blow with a spade over the head of Sri Maneswar Kalita who later fell down over the ground end the neighbours brought him to Guwahati Medical College Hospital where he succumbed to his injuries on 1.1.1993. 4. On receipt of such FIR, police started investigation and on completion of the investigation, police submitted chargesheet against the appellant under section 304, IPC. 5. During the trial before the court of learned Ad hoc Additional Sessions Judge No. 1, Kamrup, on committal of the case to him being exclusively triable by the Court of Sessions, the prosecution examined as many as 9 witnesses when defence adduced none. The case of the defence was of total denial and he claimed to be tried. 6. On comprehensive appreciation of the material evidence on record both oral and documentary, the learned trial Judge found the appellant guilty of the offence under section 304, Part-II, IPC and accordingly he was convicted and sentenced as already indicated above. 7. We have carefully scanned the evidence of all the witnesses, particularly the PW.l, the informant who was later on declared hostile by the prosecution. 7. We have carefully scanned the evidence of all the witnesses, particularly the PW.l, the informant who was later on declared hostile by the prosecution. PW.2, Rameswar Kalita, the brother of both the deceased and the appellant, PW.3, PW.4 and PW.5 who was declared hostile including PW.7, the Doctor who conducted autopsy on the deadbody of the deceased and two Investigating Officers PW.8 and PW.9. 8. It would be pertinent to examine the medical evidence to find out the nature of injury inflicted upon the deceased by the appellant. PW.7, the doctor in his evidence vividly described the injuries sustained by the deceased which are noticed as under : "(1) one stitched wound closed by four stitches obliquely present on the interior most part of the left parietal region of scalp and on opening it was found the wound measuring 4 cm x 1 cm x bone deep, margins are lacerated and blood clots are adherent over the wound and antera present 2 cm left from midline of the head and 2 cm posterior of coronal suture on left parietal scalp. Scalp - antero posterior/liner fracture present on left parietal bone, a lateral part of left side of coronal suture separated. Contusion and hemorrhage present on portal anterior parietal and left temporal region of scalp. (2) abrasion - 2.5 cm x 1 cm present in posterior aspect of right shoulder joint (3) left upper eyelid is bluish black in colour" The doctor in his evidence expressed his opinion stating that death was due to comma resulting from the injuries sustained on the head. The injuries were ante-mortem and caused by blunt force impact and homicidal in nature. 11. Having closely scrutinized the injuries so inflicted upon the deceased as evident from the above mentioned medical examination report, there is no doubt that the victim died due to one fatal blow aimed upon him on his head by the appellant and from the evidence of other witnesses it is confirmed and corroborated that due to sudden quarrel as erupted between the brothers, i.e., the deceased and the appellant, the appellant inflicted the fatal single blow on his head and in the result the victim succumbed to such injury. 12. 12. That being the factual position as emerged from the narration of the witnesses introduced by the prosecution and also taking into account the injury so supported by the .medical evidence with corroboration of the depositions of all the witnesses, this court is of the view that the conviction of the appellant under section 304, Part-II deserves no interference of this court. Accordingly such conviction of the appellant stands affirmed. 13. As regards the sentence, Mr. Mahajan learned counsel submits that the appellant is a poor weaver aged about 42 years at the time of commission of offence and he has no previous criminal record and that apart, the incident took place in the year 1992 which was occurred by spur of moment due to a quarrel between the brothers. Besides, the appellant was in confinement initially for the period from 4.1.1993 on his arrest till 21.1.1993 and thereafter from the date of conviction on 31.10.2003 to till date. Considering the above factors, it is contended that the sentence of the appellant may be considered leniently. 14. Having considered the submissions advanced by the learned counsel for the appellant and taking into account the age of the appellant including the date of occurrence, this court is of the view that ends of justice will be met if the sentence of the appellant for 8 years with a fine of Rs. 5,000 is reduced to a sentence of 4(four) years with a fine of Rs. 2,000. It is ordered accordingly. 15. In the result, the appeal is disposed of to the extent of modification as indicated above. Send down the LCR forthwith.