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2007 DIGILAW 504 (GAU)

Pareshdhar v. State of Assam

2007-08-02

AFTAB H.SAIKIA, T.NANDA KUMAR SINGH

body2007
Aftab H. Saikia, J. 1. Heard Mr. PMahanta, learned amicus curiae and Mr. D. Das, learned PP, Assam. 2. The conviction of the appellant under section 302, IPC and the sentence to undergo imprisonment for life and to pay a fine of Rs. 5, 000, in default, R.I. for six months so imposed upon the appellant by the learned Sessions Judge, Barpeta by his judgment and order dated ....8.2003 passed in Sessions Case No. 44/2003 is the subject-matter of challenge in this Criminal Appeal preferred by the appellant from the jail. 3. The prosecution case in brief is that while P.W-4, informant Shri Purna Chandra Dhar was watching "Kirtan" performance around 12 midnight on 31.3.2002 his younger son Paresh Dhar, the appellant, caused grievous injury with sharp weapon in the head of his eldest son Shri Manik Dhar, the deceased who was sleeping on his bed and left for somewhere and the dead body of Manik was lying inside the house., 4. An FIR was lodged in this regard on the basis of which investigation ensued and on "completion of investigation, police submitted charge sheet against the appellant under section 302, IPC. 5. The appellant was sent for trial before the learned Sessions Judge, Barpeta who on proper appreciation of as many as 7 prosecution witnesses so examined on behalf of the State and upon hearing the learned counsel for the parties found the appellant guilty of the offence of section 302, IPC and accordingly, convicted and sentenced the appellant as indicated above. Hence this appeal from jail. 6. Admittedly, there was no eye witnesses to the occurrence and the entire evidence was based on the circumstantial evidence as well as the extra-judicial confession so made by the appellant before the police including other persons of the village so deposed by P.Ws 2, 3, 4, 5 and 6. 7. It would be apt and necessary to notice the injuries so inflicted on the person of the deceased Manik as found by P.W-1 Doctor Paresh Kalita at the time of conducting postmortem examination which are as follows : - "1. Laceration - left orbit. (A) Laceration size-31 x 1' x 4" Clean cut incised wound. (B) Size 3" x I1 x 4' also clean cut incises wound, 2. Laceration- right eye, ' size 2" x ¥2" x 3" clean 2" x ]/2" x 3" clean cut incised wound. 3. Laceration - left orbit. (A) Laceration size-31 x 1' x 4" Clean cut incised wound. (B) Size 3" x I1 x 4' also clean cut incises wound, 2. Laceration- right eye, ' size 2" x ¥2" x 3" clean 2" x ]/2" x 3" clean cut incised wound. 3. Bite mark over right side of neck with haematoma formation Size 3" x ¥2" x 2." 8. It is seen that according to Doctor's opinion death was caused due to shock and haemorrhage caused by heavy and sharp weapon. In cross-examination Doctor testified that he detected four numbers of injuries and all the injuries were visible. According to him, any one of the injuries might cause death except haemotoma. 9. Since the conviction and sentence was mainly based on extra judicial confession, now let us examine and appreciation the evidence of those witnesses who mentioned as regard such extra-judicial confession claimed to be made by the appellant. 10. Haridas Pathak P.W.-2 in his deposition stated that he did not see the incident himself. However, villagers told him that at the relevant time brother of accused Paresh Dhar was found dead on the following morning he came to the residence of the accused and found the dead body of Manik Dhar. According to him the police prepared the inquest report of the deceased Manik Dhar during the period of investigation in his presence and others. This witness stated that during the course of investigation accused Paresh Dhar admitted his guilt before the Investigating Agency as well as the villagers that he intentionally caused death of his brother Manik Dhar. 11. On the other hand P.W.-3 Md. Ajhar Ali also narrated the same story as depicted by P.W.-2 stating that accused Paresh Dhar admitted his guilt stating that he intentionally caused murder of his brother Manik. Similar was the deposition of P.W-4, the father, that the appellant admitted his guilt before I.O. in presence of villagers P.Ws. 5 and 6 also deposed that when they were came to the residence of the accused on the following morning the appellant admitted his guilt before the police as well as to them. 11. Having gone through the evidence of the witnesses as well as upon proper analysis of medical evidence of Dr. 5 and 6 also deposed that when they were came to the residence of the accused on the following morning the appellant admitted his guilt before the police as well as to them. 11. Having gone through the evidence of the witnesses as well as upon proper analysis of medical evidence of Dr. P.W.-l who clearly detected as many as 4 injuries on the person of the appellant, we are of the firm view that the deceased was killed by the appellant. 12. However, after scrupulous scrutiny of the entire evidence, we find that although there is no evidence on record to show any motive or intention of killing of his eldest brother (since deceased) by the younger brother, such motive can be gathered from the statement made by the appellant under section 235, Cr.PC wherein against question put to him to say anything against the quantum of sentence to be inflicted upon bim, he answered that he was aged about 19 years and in the spur of moment and for greed of money he killed his brother by an axe and he also expressed his regret not to repeat such crime again. 12. Considering the peculiar facts and circumstances of the case in its entirety and remorse expressed by the appellant, we are of the considered view that the ends of justice would be satisfied, if the conviction of the appellant under section 302, IPC is converted to section 304, (Part-I), IPC and the custodial sentence of 10 years would be satisfied to meet the ends of justice. Accordingly, the conviction of the appellant is converted to section 304, (Part-I), IPC and he is sentenced to 10 years rigorous imprisonment. 13. In the result, this appeal stands partly allowed to the extent of modification as indicated above. 14. Before parting with the record, we would like to put on record our appreciation to Mr. P, Mahanta, the learned appointed amicus curiae for the help and assistance rendered to arrive at a decision in this jail appeal and accordingly, it is ordered that he.is entitled to get his professional fee which is quantified at Rs. 3, 000. L.C.R. be sent down immediately.