Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 648 (GAU)

Dinesh Rajput v. State of Assam

2008-09-03

AFTAB H.SAIKIA, P.K.MUSAHARY

body2008
JUDGMENT Aftab H. Saikia, J. 1. Heard Mrs. M. Buzarbaruah learned Counsel who has been appointed as Amicus Curiae in place of Mr. B. Buragohain, the earlier appointed Amicus Curiae who has been found to be absent when this Criminal appeal from jail is taken up for hearing. 2. Also heard Mr. K.C. Mahanta, learned P.P. Assam. 3. The Appellant from jail has challenged his conviction under Section 302, IPC and sentence to undergo imprisonment for life and to pay a fine of Rs.500/- in default, Rigorous Imprisonment (RI) for another three months and further to undergo RI for 2 years and to pay a fine of Rs.300/- in default, RI for another 1 month for the offence under Section 201, IPC so imposed by the learned Addl. Sessions Judge (Ad hoc) Jorhat by his judgment and order dated 15.3.02 rendered in Sessions Case No. 13 (J-J)/2000. 4. The prosecution case in brief is that on 1.12.98 PW-1 Shri Kalia Rajput, lodged an FIR with the Teok police station alleging that his adopted daughter Smt. Bharati Rajput on 27.11.98 gave birth to a female illegitimate child and on 30.11.98 his son, the accused-Appellant killed the said child and buried it. 5. On the basis of the allegation, the police registered a case under Sections 201/302, IPC and investigation ensued. 6. On completion of the investigation, the police submitted charge-sheet against the accused-Appellant under Sections 201/302, IPC. 7. In course of trial, the prosecution examined as many as 8 witnesses including one Court witness-1 Dr. Suren Dutta, who conducted the autopsy on the dead body of the deceased. 8. The learned Sessions Judge having meticulously appreciated the testimony of all those witnesses and also taking into account the statement of the accused-Appellant so recorded under Section 313, Code of Criminal Procedure as well as upon hearing the learned Counsel for the parties, found the Appellant guilty for the offence of committing murder of the child and accordingly, convicted and sentenced the Appellant as indicated above. 9. Admittedly, there was no eye witness to prove the prosecution case. 10. In the medical evidence of Dr. Suren Dutta, CW-1, he found the following injuries on the person of the deceased: (1) Body of the female neonat with umbillicat cord and cord ligature was present. Rigor mortis was present. Blood clot in both nostril with bluish colouration of forehead region. 10. In the medical evidence of Dr. Suren Dutta, CW-1, he found the following injuries on the person of the deceased: (1) Body of the female neonat with umbillicat cord and cord ligature was present. Rigor mortis was present. Blood clot in both nostril with bluish colouration of forehead region. (2) On dissection, the blood clot underneath the sclap was found present with multiple fracture of skult bone. 11. In the opinion of the Doctor, the cause of death was due to shock as a result of head injury sustained by the neonat. 12. We have thoroughly scrutinized and analyzed the testimony of all the witnesses including the mother of the child, PW-3 Smt. Bharati Rajput, as well as PW-5 Smt. Mira Rajput, wife of the accused-Appellant. 13. PW-3 Smt. Bharati Rajput in her disposition stated that he was the mother of the illegitimate child who was born due to rape committed on her about 3-4 years ago by someone grabbing her while she was sleeping in her room. After the child was born, while she was foundling her baby child in her lap, the accused-Appellant came running, quarrel with her and snatched away the infant from her lap. Then he dropped there baby violently at the courtyard as a result of which the baby's head was broken and died. It was also put in the evidence, since her child was illegitimate, the Appellant used to rebuke her. 14. Having meticulously considered the entire facts and circumstances of the case as unfolded by the prosecution evidence and also upon careful consideration of the circumstances under which the illegitimate female child of PW-3 was dropped on holding by the Appellant due to the quarrel and sudden provocation as regard the birth of such illegitimate child, we find that the Appellant had committed culpable homicide not amounting to murder though he had the knowledge that by such act, it will cause the death to the infant child. Under such circumstances, it would be, in our view not a case of Section 302, IPC and at best the same falls under the purview of Section 304, Part-I, IPC and accordingly, we convict the accused-Appellant under Section 304, Part-I, IPC. 15. At this stage, as regards the sentence of the Appellant, Mrs. Under such circumstances, it would be, in our view not a case of Section 302, IPC and at best the same falls under the purview of Section 304, Part-I, IPC and accordingly, we convict the accused-Appellant under Section 304, Part-I, IPC. 15. At this stage, as regards the sentence of the Appellant, Mrs. M. Buzarbaruah, learned Amicus Curiae has submitted that the Appellant had all along A been in jail for 8 years and accordingly a request has been made that he may be sentenced to the period already undergone. 16. We find sufficient force in the argument so advanced by the learned Amicus I Curiae and accordingly we sentence the Appellant to the period already undergone in I incarceration. 17. This appeal stands, partly allowed to the extent of modification of conviction and sentence as indicated above, 18. The accused-Appellant be released forthwith, if he is not required to any other case. 19. Send down the LCR immediately. 20. Before parting with the judgment, we would like to put on our appreciation to Mrs. Buzarbarah, learned Amicus Curiae for her valuable assistance rendered to arrive at a conclusion in the abovementioned appeal. Accordingly, we order that she is entitled to get her professional fee which is quantified at Rs.5000/-. Appeal allowed.