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2007 DIGILAW 503 (GAU)

Markus Bhadra v. State of Assam

2007-08-02

AFTAB H.SAIKIA, T.NANDA KUMAR SINGH

body2007
Aftab H. Saikia, J.:- 1. Heard Ms. S. Khataniar, learned advocate who has been appointed today as amicus curiae in place of earlier appointed amicus curiae, Mr. K.K. Bhatta, who is found to be absent in the court when the matter is called upon for hearing although his name has been duly reflected in the cause list. Also heard Mr. P.C. Gayan, learned Public Prosecutor, Assam. 2. The conviction under section 302, IPC and resultant sentence to imprisonment for life and to pay fine of Rs. 1,000 in default to undergo further rigorous imprisonment for 3 months so handed down to the appellant by the learned Sessions Judge, Sonitpur at Tezpur in Sessions Case No. 144/01, vide Judgment and Order dated 23.6.2003 has been assailed by preferring this criminal appeal by the appellant from jail. 3. The brief facts of the case so unfolded by the prosecution may be noticed as under : On 25.2.2001 an 'ejahar' was lodged by the PW.4, Sri Johan Tirki with the Rangapara Police Station alleging that on 24.2.2001 at about 7-00 h PM, the appellant, Markus Bhadra, murdered his younger brother, Bhairu Tirki by causing grievous injury with a sharp knife on the middle of the head of the victim at the gateway of their house. This information put the law in motion and investigation ensued. The police on completion of the investigation filed charge sheet against the appellant under section 302 IPC. 4. On committal of the case to the Court of Sessions being the same was exclusively triable by the Court of Sessions, the learned Sessions Judge during the trial on appreciation of the evidence of all the 8 prosecution witnesses including 3 official witnesses, PW.l, Dr. Ashinta Kr. Barua who conducted the post mortem on the dead body of the deceased, PW.7, S.I. Sri Nandeswar Das, the investigating officer (10) and PW.8, Ratna Kanta Bezbaruah, the officer-in-charge of the concerned police station who entrusted PW.7 with the task of investigation of the case as well as upon hearing learned counsel for the parties convicted and sentenced the appellant as mentioned above. Hence, this appeal from jail. 5. Hence, this appeal from jail. 5. On meticulous analysis of the entire records of the case including the depositions of all the witnesses, it transpires that there was only one eye-witness in the person of PW3, Smt. Muni Tirki, the wife of the informant, PW4, Johan Tirki, This eye-witness in her deposition categorically stated that the accused/appellant on the relevant date wanted to set their house to fire for which her brother-in-law, the deceased, Bhairu Tirki along with Gabriel (since dead) and Nabar Bhadra, PW5 went to the house of the appellant to make him understand not to set the house to fire as that would caused great harm to the entire houses of the area including the house of the accused, who was adjacent neighbour of PW3 and PW5. After making him understand not to set fire on the house, when Bhairu Tirki came out from the house of the accused Markus, inflicted a 'Dao' blow on the head of the victim, Bhairu Tirki causing injuries on his head and blood came out from the injured portion of his head. As the blood came out from the injured portion of the deceased, she wrapped the head of the victim with cloths and thereafter the victim was taken to the Tea Garden Hospital in a vehicle. As they entered inside the Tea Garden Hospital, the victim succumbed to his injury. In cross, she stated that the house of the accused and their houses having common courtyard, the occurrence took place at about 7-00 PM at their courtyard and there was darkness of night. She specifically mentioned that at the relevant time she was cooking their meal. 6. On the other hand, PW4, the informant, Johan Tirki in his deposition testified that while returning home from duty at about 8-00 PM, he h found his younger brother, Bhairu Tirki was lying on the courtyard in injured condition and his head was wrapped with cloths as his head was injured by the accused by causing 'Dao' blow. His wife, PW3, Minu Tirki told him that accused Markus had inflicted 'Dao' blow on the head of the victim, Bhairu Tirki and thereafter the victim was taken to the Tea Garden Hospital in a vehicle. As they entered inside the Tea Garden Hospital, the victim succumbed to his injury. In cross, he stated that he learnt the entire episode from his wife. 7. As they entered inside the Tea Garden Hospital, the victim succumbed to his injury. In cross, he stated that he learnt the entire episode from his wife. 7. PW5, Nabar Badra, who happened to be identified by PW3, as one of the person accompanying the deceased, the brother-in-law of PW3 to the house of the appellant along with other persons, namely, Gabriel (since dead) depicted another story negating the version of PW3, In his deposition, he clearly stated that on the relevant night he along with other companions were busy in collecting funds for a social function. While collecting the funds they went towards the house of the appellant, Markus Bhadra and at some distance he heard that Markus assaulted Bhairu Tirki by a Dao' and when he came to the house of the appellant, he saw that Bhairu Tirki was lying in injured condition on the courtyard of the accused, Markus. He saw injury with blood on the bead of the deceased. In cross, he was categorical that he did not see who had struck the fatal blow on the deceased and it was a dark night. When he heard 'hulla' from a distance of about 100/150 metres from the house of the appellant, he came there and found Bhairu Tirki in injured condition on the courtyard of the appellant. He also explicitly deposed that when he reached the place of occurrence, many people were assembled there including Muni, Sushma (who was not examined by the prosecution) and many young boys. He also stated that when he reached to the place of occurrence, he saw some elder persons whom he did not recognize. 8. Therefore, this witness appears to have absolutely dislodge the story so projected by the PW3, who was claimed by the prosecution to be the only eye-witness of the entire incidence. Be that as it may, from a scrupulous analysis of the entire evidence on record including PW1, PW2, PW4 and PW6, it appears that all of them found one injury on the head of the deceased and such injury appears to have been duly corroborated by the medical evidence. 9. Be that as it may, from a scrupulous analysis of the entire evidence on record including PW1, PW2, PW4 and PW6, it appears that all of them found one injury on the head of the deceased and such injury appears to have been duly corroborated by the medical evidence. 9. The Doctor, PW1 while examining the dead body of the deceased found the following injury : "(1) Sharp cut 8" size over the left side of head extending from forehead to the occipital region, Over the cranium : (2) Scalp was fractured below the injury line. Left haematoma was also cut. Injuries are antemortem in nature and caused by sharp heavy weapon." 10. The above injury found on medical examination of the deceased by the Doctor goes to indicate that the scalp was fractured below the injury line on the left side of the head. Thus, it is found that one fatal single a injury was inflicted on the person of the dead body of the deceased which was also duly corroborated with the evidence so adduced by the prosecution witnesses and ocular evidence of PW3. 11. It also transpires from the perusal of the depositions of PW6 that he heard discussion of the village people that there was a 'marpit' that took place in the 23 No. line wherein the houses of the accused Markus Badra and the deceased Bhairu Tirki were quite nearly situated. From the deposition of this evidence along with the testimony of other evidence including the deposition of PW3, it will go to indicate that before the single fatal blow which was inflicted on the head of the deceased, there was an altercation between the appellant and the deceased as regards the setting the house of deceased to fire and for such matter the deceased went to the house of the accused, Markns to make him understand not to set fire on the house and subsequently there was some scuffle and 'marpit' amongst them. Though there was no intention, proved by the prosecution to kill the deceased, the appellant might have inflicted such a single fatal blow on the head of the deceased by a spur of moment upon a sudden fight occurred between them. 12. Though there was no intention, proved by the prosecution to kill the deceased, the appellant might have inflicted such a single fatal blow on the head of the deceased by a spur of moment upon a sudden fight occurred between them. 12. In view of the consideration of the above facts and circumstances of the case in its entirety and aiso having considered the depositions of the entire prosecution witnesses including PW.3, PW.5, PW.7 the investigating officer and PW.l, the Doctor, we are of the view that there appears no intention of the appellant to kill the deceased and the incident occurred in the hit of passion upon a sudden quarrel and as such it is a case to be covered by section 304, Part II instead of section 302, IPC. Accordingly, we convert the conviction of the appellant under section 304, Part-II, IPC. 13. At this stage, Ms. Khataniar, learned amicus curiae has submitted that from the records it reveals that the appellant is a young person of aged about 30 years at the time of commission of offence having his old mother and family members who are absolutely dependent on him for their livelihood and he was arrested on 25.2.2001. In this process, he spent already more than 6l/2 years in incarceration and accordingly the petitioner may be, as submitted, sentenced for the period of detention already undergone in the interest of justice. 14. We have found enough force in her submission and considering the mitigating circumstances as indicated above, we are of the view that ends of justice will be satisfied if the appellant is sentenced for the period already undergone in judicial custody. It is ordered accordingly. 15. The appellant be set at liberty forthwith, if he is not otherwise connected or wanted in any other criminal case. 16. In view of the above, this criminal appeal stands partly allowed to the extent of modification of the sentence as indicated above. Send down the LCR forthwith. 17. Before parting with the case records, this court would like to put on record the appreciation to Ms. S. Khataniar for her valuable assistance rendered in arriving at a decision above-recorded in this case as amicus curiae. Accordingly, it is ordered that she is entitled to professional fees, which is quantified at Rs. 3,000.