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2008 DIGILAW 366 (GAU)

Milan Goala v. State of Assam

2008-05-22

AFTAB H.SAIKIA, ANIMA HAZARIKA

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mrs. M. Gogoi, learned Amicus Curiae who has been appointed as Amicus Curiae in place of Mr. N. Baruah, earlier appointed Amicus Curiae as he has found to be absent when the Jail Appeal No. 104(J)/2002 is called upon for hearing. 2. Also heard Mr. B.B. Gogoi, learned P.P., Assam. 3. The prosecution case in brief is that on 09.12.2000, when Girin Goala, the brother of the informant Rajesh Goala, P.W.-2 (herein-after referred to as the deceased) came out of his house for night guard duty of the village defence party, the accused Milan Goala, another brother of the informant, came there from somewhere and indulged in altercation with the deceased to whom the later caused serious injuries on his person by stabbing him with the pointed weapon in his hand. The deceased was brought to the Raja Ali Tea Garden Hospital for treatment in an injured state and he died on his way to hospital and to this effect an FIR was lodged by Shri Rajesh Goala, P.W.-2 with the Officer-in-charge, Duliajan Police Station on 10.12.2000. 4. The prosecution examined as many as 6 witnesses including P.W.-1, Dr. B.C. Roymedhi who conducted the postmortem examination of the deceased as well as P.W. 6, Mr. Surya Neog, the Investigation Officer (for short, 'the I.O') as well. 5. The learned Sessions Judge, Dibrugarh on appreciation of the evidence on record of the witnesses so examined by the prosecution including the materials so exhibited and also upon hearing the learned Counsel for the parties, found the appellant guilty of the offence under Section 302 IPC and awarded sentence to suffer Rigorous Imprisonment (for short, the R.I.) for life and to pay a fine of Rs.500/- in default, to suffer further R.I. for 1 (one) year. 6. Assailing the impugned judgment and conviction, Mrs. Gogoi, learned Amicus Curiae has submitted that P.W.-2, Rajesh Goala and R W.-4, Ratan Goala both being brothers, were declared hostile. The evidence of P.W.-3, Anil Sonowal as well as P.W.-5, Tilak Goswami, who have been projected by the prosecution as eye-witnesses, are totally unreliable as the evidence of those witnesses were full of contradictions and inconsistencies and those are not sufficient to inspire the confidence to bring home the charge of offence under Section 302 IPC. According to her, it has come on the evidence of P.Ws. According to her, it has come on the evidence of P.Ws. 3 and 5 that the deceased and the appellant, who were brothers, were engaged themselves in altercation and that had erupted sudden provocation which resulted in causing such injuries by the appellant with the pointed weapon that was seized by the police vide seizure Exhibit-4, which clearly show that the offending weapon was a knife of eight inches length. Under such circumstances taking into account the medical evidence so adduced by P.W.-1, Dr. Roymedhi who found two penetrating injuries, i.e. one in the abdomen and other in the chest size 1.5 cm. x 1 cm. and 1.5 x 1 cm. respectively, it would go to prove that there was no such intention to kill the deceased and the entire incident was happened due to sudden provocation. According to her if the appellant is not acquitted under Section 302, IPC it may be a case at best under Section 304 Part-I, IPC and a request has been made to alter his conviction to Section 304-Part- I and sentence the appellant for the period already undergone. 7. On the other hand, Mr. Gogoi, learned P.P., Assam supporting the impugned conviction and sentence has submitted that the medical evidence amply proved the two penetrating injuries one in the abdomen and the other in the chest size 1.5 cm. x 1 cm. and 1.5 x 1 cm. respectively which was duly corroborated by the evidence of P.Ws. 3 and 5 as well as P.W.-6 the I.O. Under such circumstances, according to him, the conviction and sentence were justified and no interference by this Court is warranted. 8. We have given our thoughtful consideration to the extensive arguments placed on record. Also we have meticulously perused the entire medical evidence on record particularly, the evidence of P.W 3 and P.W-4. We have also gone carefully through the statement of the accused so recorded under Section 313 Cr.P.C. 9. From the evidence of P.W. 3 and P.W-5 there is no doubt that the incident occurred due to altercation between the appellant and the deceased who were brothers and such incident was reflected in the FIR itself lodged by the informant, the another elder brother who was declared hostile at the time of giving his deposition. 10. From the evidence of P.W. 3 and P.W-5 there is no doubt that the incident occurred due to altercation between the appellant and the deceased who were brothers and such incident was reflected in the FIR itself lodged by the informant, the another elder brother who was declared hostile at the time of giving his deposition. 10. At this stage, it would be prudent and expedient to quote the injuries so found by the Doctor P.W.-1 in his postmortem report and the same is quoted as under: 1. One penetrating injury 1.5 cm. x 1 cm. Oval, in shape with clean cut margin present on lowermost part of front of abdomen on left side 5 cm. left to midline and 8 cm. above and left front pubic symphysis x abdominal cavity deep. The wound pierces the abdominal wall, pelvic peritoneum on left side and pierces the left side of urinary bladder and some loops of small intestine blood clots were adherent in the track of the wound. 2. Another penetrating injury 1.5 x 1 cm. on lateral aspect of left lower most part of chest wall along posterior line 16 cm. below the axillary margin and 17 cm. left from mid vertebral line on back x throco-abdominal cavity deep. The wound pierces the thoracic cavity on 8 cm left intercostals space and pierces the lower margin on left lung and left dome of diaphragm and then pierces the spleen. Blood clots are firmly adhered in the track of the wound. The left pleurae along the track of the Injury No. 2 penetrated the left pleural cavity contains approximate 750 ml. Blood. Right lung and heart was healthy. Chamber of the heart was empty. Peritoneum was punctured along the track of the injury No. 1 peritorual cavity contains, about 1½ litres fluids and clotted blood. Stomach was healthy and contains about 100 grams. Partly digested food materials and gas. Other/parts healthy. 11. The doctor opined that the cause of death was due to haemorrhage and shock resulting from the penetrating injuries sustained on chest and abdomen. The injuries were ante mortem and caused by sharp and pointed weapons and homicidal in nature. Both injuries No. 1 and 2 individually were sufficient to cause death of a person in the ordinary course of nature. 12. The injuries were ante mortem and caused by sharp and pointed weapons and homicidal in nature. Both injuries No. 1 and 2 individually were sufficient to cause death of a person in the ordinary course of nature. 12. Having considered the deposition of the witnesses particularly P.W.-3, P.W.-5 as well as P.W.-6 as well as the medical evidence, we are of the considered view that the incident occurred due to altercation between the deceased and the appellant and as a result thereof there was of sudden provocation and at the spur moment, the appellant struck such two fatal blows. However, according to us, the appellant had the knowledge that such injuries would result in death. 13. We have also taken into note that the informant P.W.-2, the informant, the deceased and the appellant are the brothers of the same family. 14. Having considered the aggravating and mitigating circumstances as recorded above, we are of the considered view that it is not a case under Section 302 IPC, At best, it is case under Section 304 Part-I, IPC and accordingly to meet the end of justice, we convict the appellant under Section 304 Part-I, IPC and sentence him to undergo rigorous imprisonment for 10 years. In the result, this appeal stands partly allowed to the extent of modification of the Conviction and sentence as mentioned above. 15. Before parting with the judgment; we would like to put on record our appreciation to Mrs. M. Gogoi, learned Amicus Curiae for her valuable assistance rendered to arrive at a conclusion as indicated above. Accordingly, we order that she is entitled to get her professional fee which is quantified at Rs.5000/-.