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2008 DIGILAW 564 (GAU)

Lalu Goala v. State of Assam

2008-08-05

AFTAB H.SAIKIA, HRISHIKESH ROY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Since both the criminal appeals being Criminal Appeal No. 191/02 and Criminal Appeal No. 247(J)/02 raise a common question of law based on exactly similar and identical facts situation, we propose to take both the criminal appeals together for hearing and having heard both the appeals analogously, the same are being disposed of by this common judgment and order. 2. Heard Mr. A.C. Sharma, learned Counsel appearing for the Appellant in Criminal Appeal No. 191/02 as well as Mr. S.C. Biswas, learned Amicus Curiae assisted by Mrs. R. Rongmei, learned Counsel representing the Appellant who has preferred Criminal Appeal No. 247Q)/02 from jail. We have also heard Mr. K.C. Mahanta, learned Public Prosecutor, Assam. 3. The prosecution case in brief as narrated in the First Information Report (for short, 'FIR') is that on 11.12.2000 at about 5.00 p.m. Krishna Mandal (hereinafter referred to as 'the deceased'), son of Debendra Mandal, the informant (PW 1) went out of home for a walk. However, the next morning i.e. 12.12.2000 one Shiba Yogi (PW 5) and Rajen Goala (PW 6) came to the house of the informant and informed him that the dead body of his son was lying on the 'Veranda' of Shiva Yogi (PW 5) and when asked PW 5 told that one Lalu (Appellant) had killed his son. 4. The police on completion of the investigation, ensued on the basis of the FIR so lodged by PW 1, the informant with the Chariduar Police Out Post within the jurisdiction of Rangapara Police Station submitted charge-sheet against the Appellant under Section 302, IPC. 5. During trial, the prosecution examined as many as 9 witnesses including PW 2, Dr. A.C. Saikia, who conducted autopsy on the dead body of the deceased and PW 9 A Zaman, the Investigating Officer (I/O). 6. The learned Sessions Judge having done careful appreciation of the testimony of all those witnesses so produced by the prosecution and upon hearing learned Counsel for the parties found that the prosecution was successful in establishing its case beyond reasonable doubt against the Appellant for killing the deceased. 6. The learned Sessions Judge having done careful appreciation of the testimony of all those witnesses so produced by the prosecution and upon hearing learned Counsel for the parties found that the prosecution was successful in establishing its case beyond reasonable doubt against the Appellant for killing the deceased. Consequently, the learned Judge vide judgment dated 30.3.2002 passed in Sessions Case No. 145/2001 (Sonitpur) convicted the Appellant under Section 302, IPC and sentenced him to undergo rigorous imprisonment (for short, 'RI') for life and to pay fine of Rs.2,000/-, in default, further RI for 1 (one) year. 7. Being aggrieved by the aforesaid conviction and sentence, the Appellant has preferred both the instant appeals i.e. Criminal Appeal No. 191/02 including the Criminal Appeal No. 247(J)/02 from jail. 8. Admittedly, there was no eye-witness to prove the offence of killing the deceased and the entire conviction was based on circumstantial evidence basically on the plea of dying declaration. 9. We have meticulously scanned all the materials available on record including the testimony of all those witnesses so examined by the prosecution. 10. It is seen from the perusal of the testimony of PW 5 that at around 11:00 p.m. while this witness was watching Television, he heard groaning of a man in the backside of his house. He called the Chowkidar, Rajen Goala (PW 6) and then the injured Krishna (deceased) told that the accused Lalu had kicked him. Chowkidar told him that he would do something in the morning and accordingly brought the injured (the deceased) to the veranda of PW 5 and the injured was administered water by PW 5's wife. In the very morning Krishna (the deceased) died. 11. At the same breath, in regard to dying declaration as noticed above, PW 6, Rajen Goala in his examination-in-chief deposed that on the date of occurrence, late night one Hiralal came to him and informed that a man had been lying in the backside of the house of PW 5 and thereafter they went there. They saw PW 5 and other peoples assembled there. Then the deceased told slowly that accused Lalu had kicked him on his belly at the house of Kusum. Then they asked Kusum (PW 8) who told that Lalu, the Appellant, her elder brother assaulted Krishan (deceased). They saw PW 5 and other peoples assembled there. Then the deceased told slowly that accused Lalu had kicked him on his belly at the house of Kusum. Then they asked Kusum (PW 8) who told that Lalu, the Appellant, her elder brother assaulted Krishan (deceased). However, Kusum, who was examined by the prosecution as PW 8 was declared hostile as she later on denied and concealed the facts as regards assault on the deceased by her elder brother. 12. PW 2, the Doctor in his medical evidence described the injuries so found during the time of conducting post-mortem on the dead body of the deceased as below: Healthy Male body, Rigor Mortis present (1) Abrasion on the right side of umbilicus. (2) Bleeding from both nostrils. (3) Swelling on the forehead on right side, on dissection, haemotoma in the frontal region, on further dissection haemotoma on the frontal lobe. All the injuries were ante mortem in nature. The abdomen was full of blood. 13. The Doctor, in his opinion, opined that the cause of death was due to shock and haemorrage as a result of injuries sustained. However, in cross, the Doctor testified that the abrasion as found in the post-mortem might be caused by fall on rough substance. He also stated that no incised or cut injury was detected on the neck region and the injury on the frontal lobe might be caused by fall on hard substance. 14. From the testimonies of PW 5 and PW 6 as regards dying declaration made to them by the deceased by stating that the Appellant, Lalu had kicked him on the belly, we find that their evidence as regards the dying declaration made by the deceased to them that the Appellant kicked him on his belly, to some extent, did get corroboration from the medical evidence as quoted above. 15. It is also seen in their evidence that the abdomen of the deceased was full of blood and injuries so suffered might have been caused by fall on rough substance. It is also come on the evidence of PW 5 that he had felt the smell of liquor from the mouth of the deceased on the day of occurrence. 16. It is also seen in their evidence that the abdomen of the deceased was full of blood and injuries so suffered might have been caused by fall on rough substance. It is also come on the evidence of PW 5 that he had felt the smell of liquor from the mouth of the deceased on the day of occurrence. 16. Having considered the facts and circumstances of the case and also upon hearing learned Counsel for the parties, we are of the view that it was the Appellant who assaulted the deceased as a result of which the deceased died. However, as it appears from the testimony of entire evidence, there was no intention on the part of the Appellant to cause death of the deceased. Under such circumstances, we are of the firm opinion that the present case is not a case to fall within the purview of Section 302, IPC and at best, it can be a case of Section 304 Part-II, IPC and accordingly, we set aside the conviction of the Appellant under Section 302, IPC and convict him under Section304 Part-II, IPC. 17. At this stage, it is stated at the Bar by the learned Counsel for the Appellant as regards sentence that the Appellant has already been in jail for about 6-1/2 years continuously serving his sentence and accordingly a request has been made to sentence the Appellant to the period already undergone. 18. In view of what has been discussed, observed and stated above, we find enough force in the submission of the learned Counsel for the Appellant and accordingly, we convict the Appellant under Section 304 Part-II, IPC and sentence him to the period already undergone. 19. The Appellant be set at liberty forthwith, if he is not required in any other case. 20. In the result, both the criminal appeals being Criminal Appeal No. 191/02 and Criminal Appeal No. 247(J)/02 stand partly allowed to the extent of modification of conviction and sentence as indicated above. 21. Send down the LCRs forthwith. Appeal allowed.