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2010 DIGILAW 482 (GAU)

Mana Saikia v. State of Assam

2010-07-20

C.R.SARMA, RANJAN GOGOI

body2010
JUDGMENT Ranjan Gogoi, J. 1. This appeal is directed against the judgment and order dated 30.3.2004 passed by the learned Addl. Ad hoc Sessions Judge, Jorhat in Sessions Case No. 61(J-J)/2003 by which the accused/Appellant has been convicted under Section 302, IPC and sentenced to undergo R.I. for life and to pay a fine of Rs.5,000, in default, to undergo R.I. for four years more. Aggrieved, the accused/Appellant who is in jail has preferred the present appeal. 2. We have heard Mr. R.M. Choudhury, learned amicus curiae and Mr. Z. Kamar, learned Public Prosecutor, Assam. 3. The law was set in motion by P.W.2, Smt. June Saikia by lodging an FIR in the Garmur Police Station at about 12.10 p.m. of 12.5.2002. In the aforesaid FIR it was stated that at about 12 noon of 10.5.2002 the accused/Appellant who is the brother-in-law of the first informant (husband's brother) had quarrelled with her husband Basanta Saikia and had injured him grievously by cutting him with a 'kapi dao'. According to the first informant, along with some persons she had removed her injured husband to the hospital but he had succumbed to the injuries en route. 4. On receipt of the aforesaid FIR, Garmur PS. Case No. 14/2002 under Section 302 IPC was registered. P.W.8, Bidyadhar Panging, S.I. of Police was entrusted with the investigation of the case, in the course of which, the police party led by him visited the place of occurrence. A sketch map was prepared and inquest was held on the dead body which was sent for post-mortem examination. The statements of persons acquainted with the offence alleged were recorded by the Investigating Officer under the provisions of Section 161, Code of Criminal Procedure. Thereafter, at the conclusion of the investigation, charge sheet under Section 302, IPC was submitted against the accused/Appellant. The offence alleged being exclusively triable by the court of Sessions, the learned SDJM, Majuli by order dated 21.6.2003 committed the case for trial to the Courts of Sessions at Jorsat. 5. In the trial court charge under Section 302, IPC was framed against the accused/Appellant . The same being read over and explained, the accused/Appellant pleaded not guilty and wanted to be tried. Nine witnesses were examined by the prosecution to prove and establish its case. No defence evidence was led. 5. In the trial court charge under Section 302, IPC was framed against the accused/Appellant . The same being read over and explained, the accused/Appellant pleaded not guilty and wanted to be tried. Nine witnesses were examined by the prosecution to prove and establish its case. No defence evidence was led. However, the statement of the accused/Appellant was recorded under the provisions of Section 313, Code of Criminal Procedure. Thereafter, at the conclusion of the trial, the accused/Appellant has been found guilty and sentenced as aforesaid. 6. P.W.1, Dr. Amal Kr. Phukan who was working at the relevant point of time in the Jorhat Civil Hospital had conducted post mortem of the deceased. Deposing from the post mortem report (Exhibit-1) P.W.1 had stated that he had found the following injuries on the body of the deceased: 1. Cut injury amputating index finger at base on right side. 2. Cut injury base on middle finger (right) 3 cm x 2 cm x 1 cm longitudinal. Abdomen: Penetrating injury on right iliac fossa 6 cm x 4 cm through which bowel is coming out. Penetrating injury on right iliac fossa amputation of index finger (right) and cut injury of middle right finger. Haemopentoneum and laceration of mesentery of small intestine in right side. According to P. W. 1, the death was as a result of shock and haemorrhage due to the injuries sustained. 7. P.W.2, Smt. June Saikia is the wife of the deceased. According to this witness, she, her husband and the accused/Appellant used to reside in the same house. P.W.2 has deposed that in the afternoon of the day of occurrence while she along with her mother-in-law were having their meal inside the house, the male members of the house including her father-in-law were outside. Around this time one boy, i.e., Ratul Barua had come and had asked the accused/Appellant to accompany him to the market. According to P.W.2, her deceased husband tried to dissuade the accused/Appellant from going to the market at that hour. As the accused/Appellant was unwilling to listen to his elder brother the deceased used a cane on the accused/Appellant. Enraged, the accused/Appellant picked up a 'kapi dao' which was lying on a bench nearby and dealt cut blows on the stomach of her husband. According to P.W.2, she tried to intervene but without success. As the accused/Appellant was unwilling to listen to his elder brother the deceased used a cane on the accused/Appellant. Enraged, the accused/Appellant picked up a 'kapi dao' which was lying on a bench nearby and dealt cut blows on the stomach of her husband. According to P.W.2, she tried to intervene but without success. P.W.2 has further deposed that even thereafter the accused/Appellant attempted to inflict cut blows on the neck of her husband. However, her husband resisted the attack with his right hand, as a result of which, he received injuries on the right hand and the index finger had got severed. According to P.W.2, her husband had fallen down as a result of the injuries sustained and at that point of time leaving the 'dao' behind the accused/Appellant had fled away. P.W.2 has further deposed that from the place of occurrence her husband was carried to her parents' house and a doctor was called. But before any medical treatment could be rendered her husband had passed away. 8. P.W.3, Padram Saikia is the father of the deceased as well as the accused. He has, however, given a slightly different version of the occurrence. According to P.W.3, after finishing his meal at about 12 noon of the date of occurrence while he was outside the house, the accused/Appellant was getting ready to go to the market. According to P.W.3, the deceased tried to dissuade the accused/Appellant from going to the market and in this connection the deceased had also beaten up the accused/Appellant. P.W.3 has further deposed that the deceased brought out a 'dao'. He, therefore, proceeded to call other people for help. Coming back he saw injuries in the stomach of the deceased as well as on his right hand and index finger. According to P.W.3, the accused/Appellant had disappeared from the place but had returned some 3/4 days later. P.W.3 had further deposed that his injured son (deceased) was taken to his father-in-law's house for treatment but he died soon thereafter. 9. P.W.4, Rupai Hazarika who is the gaonburah of Charai Chapori village had deposed that after the deceased had reached his father-in-law's house he was given information of the incident. Thereafter, he came and saw the deceased. P.W.3 had further deposed that his injured son (deceased) was taken to his father-in-law's house for treatment but he died soon thereafter. 9. P.W.4, Rupai Hazarika who is the gaonburah of Charai Chapori village had deposed that after the deceased had reached his father-in-law's house he was given information of the incident. Thereafter, he came and saw the deceased. P.W.4 has further deposed that he had found the wife of the deceased (P.W.2) crying and though he had asked the details of the incident, P.W.2 was not in a position to give any coherent reply except that her husband was hacked to death by the accused/Appellant. 10. P.W.5, Dandeswar Baruah is the father-in-law of the deceased. According to P.W.5, his daughter (P.W.2) along with four other boys had brought the deceased to the hospital. On the way to the hospital they had entered his house and a short while later his son-in-law had passed away. According to this witness, there was a cut injury on the stomach of the deceased which was bleeding. P.W.5 has specifically deposed that, on being asked, his daughter (P.W.2) had given a vivid description of the incident which was to the effect that after being prevented/obstructed from going to the market, the deceased had dealt a few blows to the accused/Appellant with a cane. Thereafter, the accused/Appellant had tried to injure the deceased with a 'kapi dao' and when the deceased tried to resist the index finger of his right hand had got severed. According to P.W.5, he was further informed by his daughter (P.W.2) that the accused/Appellant had thrown the 'kapi dao' towards the deceased, as a result of which, the deceased sustained cut injuries in the stomach. 11. P.W.6, Smt. Ganga Saikia is the mother of the deceased as well as the accused/Appellant. She is an eye witness to the occurrence. The version unfolded by this witness is in tune with what had been stated by her husband, i.e., P.W.3 but somewhat opposed to the version unfolded by the wife of the deceased (P.W.2). According to P.W.6, after the deceased had beaten the accused/Appellant with a cane, the accused/Appellant had abused the deceased. On being so abused, according to P.W.6, the deceased had chased the accused/Appellant with a 'dao', whereafter, both of them had got engaged in a scuffle. According to P.W.6, after the deceased had beaten the accused/Appellant with a cane, the accused/Appellant had abused the deceased. On being so abused, according to P.W.6, the deceased had chased the accused/Appellant with a 'dao', whereafter, both of them had got engaged in a scuffle. According to P.W.6, at that point of time, they came to the road shouting for help. On returning about an hour later she found the deceased sitting in an injured condition with blood coming out from an injury near the stomach. According to P.W.6, the accused/Appellant was not present at that time. 12. The evidence of P.W.7 would not be very material for the purposes of the present case. P.W.8, Bidyadhar Panging is the Investigating Officer of the case who had deposed with regard to the different steps taken in the course of the investigation. P.W.9, Promod Sharma is another police officer who had submitted charge sheet against the accused/Appellant after receipt of the post mortem report. 13. A consideration of the evidence adduced by the prosecution witnesses, the details of which have been noticed above, would indicate that there are at least three eye witnesses to the occurrence, namely, P.W.2 (wife of the deceased); P.W.3 (father of the deceased) and P.W.6 (mother of the deceased). A reading of the testimony of the aforesaid witnesses would go to show that there is a substantial difference in the version unfolded by P.W.2 on one hand and P.W.3 and 6 on the other hand. While P.W.2 clearly implicates the accused/Appellant insofar as the injuries on the stomach and right hand of the deceased are concerned, the version unfolded by the other two witnesses stands on a slightly different footing. Both P.W.3 and P.W.6 have stated that over the issue of the accused/Appellant going to the market there was an altercation between the two brothers and the deceased had beaten the accused/Appellant with a cane over the said issue. The evidence of P.W.3 and P.W.6 further indicates that on being so beaten by the deceased, the accused/Appellant had rebuked him, as a result of which, the deceased had pulled out a 'dao'. In fact, according to P.W.6, the deceased had chased the accused/Appellant with the 'dao' and, thereafter, both of them got engaged in a scuffle. 14. The evidence of P.W.3 and P.W.6 further indicates that on being so beaten by the deceased, the accused/Appellant had rebuked him, as a result of which, the deceased had pulled out a 'dao'. In fact, according to P.W.6, the deceased had chased the accused/Appellant with the 'dao' and, thereafter, both of them got engaged in a scuffle. 14. At this stage, the court must also take notice of the fact that there is a significant variation in the version unfolded by P.W.2 and what was reported by the said witness (P.W.2) to her father, i.e., P.W.5. In this regard, specific notice must be had that while P.W.2 had ascribed specific assault by the accused on the stomach of the deceased, P.W.5 in his deposition had stated that he was informed by P.W.2 that the accused/Appellant had thrown the 'dao' in the direction of the deceased, as a result of which, the deceased sustained injuries on the stomach. 15. The court, therefore, is confronted with different versions of the occurrence as narrated by different prosecution witnesses who were examined as eye witnesses of the occurrence. The legal consequence that would emanate from such a situation and the course of action that must be adopted by the court is obvious. The version which is most favourable to the accused must be taken into account unless, of course, the said version is inherently incredible. Adopting the said well settled principle of law the court, naturally, will not be in a position to accept the version narrated by P.W.2 and, instead, must go by what was stated by P.W.3 and P.W.6, i.e., the parents of the deceased. 16. It has already been observed by us in a preceding part of this order that the version offered by P.W.3 and P.W.6 is almost consistent. Both the witnesses have deposed that over the issue of the accused/Appellant going to the market there was an altercation between the two brothers, in the course of which, the deceased had beaten the accused/Appellant with a cane. Thereafter, it appears that the accused/Appellant had rebuked the deceased and, enraged, the deceased had picked up a 'dao'. From the version of P.W.6 it also appears that the deceased had chased the accused/Appellant with a 'dao' and, thereafter, both of them had got engaged in a scuffle. 17. Thereafter, it appears that the accused/Appellant had rebuked the deceased and, enraged, the deceased had picked up a 'dao'. From the version of P.W.6 it also appears that the deceased had chased the accused/Appellant with a 'dao' and, thereafter, both of them had got engaged in a scuffle. 17. The above version of the prosecution which must be accepted by the court in the absence of any inherent incredibility in the evidence of P.W.3 and 6, however, would rule out a conclusion of necessary intention on the part of the accused/Appellant to cause the death of the deceased so as to make the accused/Appellant liable under Section 302, IPC. Rather, it is our considered view that having regard to the said evidence on record it would be more appropriate to fix the liability of the accused/Appellant under Section 304, Part-II, IPC. That the death of the deceased had occurred in the course of the incident in which the accused was involved and such death was caused by a sharp cutting instrument like a 'dao' would stand proved and established from the part of the prosecution case which the court is inclined to accept. 18. In the above situation, we are of the view that the conviction of the accused/Appellant should be altered to one under Section 304, Part-II, IPC. We have also noticed that the accused/Appellant has been in custody at least since 30.3.2004, i.e., date of the impugned judgment. He must, therefore, have served a period of over six years in custody. We, therefore, deem it appropriate to modify the sentence of imprisonment imposed on the accused/Appellant to the period of sentence already undergone by him. The fine imposed on the accused/Appellant also stands reduced to Rs.1,000, in default of which, the accused/Appellant will suffer R.I. for three months more. The accused/Appellant would be entitled to be released from prison immediately on payment of the fine imposed. 19. Consequently, the appeal succeeds in part and to the extent indicated above. 20. We acknowledge the assistance rendered by Mr. R.M. Choudhury, learned amicus curie in the case and direct the State to pay to Mr. Choudhury two days' hearing fee at the rate of Rs.2,500 per day.