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2012 DIGILAW 1046 (GAU)

Haren Pator v. State of Assam

2012-09-04

P.K.MUSAHARY

body2012
JUDGMENT Hon'ble Mr. Justice P K Musahary 1. The appellant was convicted u/s 304 Part-II IPC and sentenced to undergo R.I. for 10 years vide judgment and order dated 3.12.2011 rendered by the learned Sessions Judge, Morigaon in Sessions Case No. 58/2008(GR Case No. 418/07). On being so convicted the appellant is serving sentence. He has preferred this appeal from jail. I have heard Ms. B. Bhuyan, learned Amicus Curiae for the convict appellant and Mr. BS. Sinha, learned Addl. P.P., Assam, for the State respondent. 2. The prosecution story is unfolded in the FIR dated 17.4.2007 lodged by one Rafan Bordoloi wherein it has been alleged that the appellant Haren Pator assaulted Ramrish Bordoloi at his vital part like chest by fist blows and bamboo stick on 16.4.2007 at 5 PM causing death to him at the place of occurrence. Police registered the Jagiroad PS Case No. 52/2007 u/s 302 IPC and after investigation submitted charge sheet and the learned Magistrate committed the case to the court of Sessions for trial. The learned sessions judge on the basis of the materials found on record framed charge u/s 302 IPC which, on being read over and explained, was denied by the accused who demanded to stand the trial. He, accordingly, faced the trial and the learned trial court convicted and sentenced him as mentioned above. 3. The prosecution examined 9 witnesses including the medical officer and the I.O. The accused also examined two witnesses in his defence. A court witness was also examined. 4. There is only one eye witness in this case. He is one Kartik Boro who was examined as PW 2. The learned trial court completely banked on the evidence of this eye witness in passing the order of conviction and sentence. What he has stated in his evidence is required to be scanned and appreciated. As per his evidence, he knows both the accused Haren and deceased Ramrish. They are from separate neighbouring villages but near to each other. On the occasion of Bohag Bihu (a State festival) Kartik met Ramrish while he went to the village shop. The deceased asked this witness whether there was any provision for celebrating Bihu in his house ? This witness took the deceased to his house and took liquor. The deceased wanted to visit some other houses and this witness accompanied him. On the occasion of Bohag Bihu (a State festival) Kartik met Ramrish while he went to the village shop. The deceased asked this witness whether there was any provision for celebrating Bihu in his house ? This witness took the deceased to his house and took liquor. The deceased wanted to visit some other houses and this witness accompanied him. At that time accused was coming from opposite direction and when Haren and Ramrish came face to face an altercation took place between them in their mother tongue 'Tiwa' resulting into marpit. Ramrish used his hand but accused Haren took a split piece of bamboo from the house nearby the place of occurrence and assaulted Ramrish. Ramrish sustained injury on his waist. However, the quarrel and marpit ended and they moved towards their respective direction. This witness also went back to his house. He deposed that he intervened to end the marpit between the accused and the deceased and when they stopped assaulting each other he went back to his house. The incident took place in broad day light yet nobody from the neighbourhood came there to intervene the altercation. He found nobody at the place of occurrence as the people were enjoying and celebrating Bihu. He was called by police and on appearing before the police he narrated the incident from his knowledge. 5. The defence counsel did not indulge in elaborate cross examination on this witness and remained satisfied by putting a suggestion that whatever deposed by him (PW2) before the court are false. The said suggestion was denied. It appears that PW 2 was recalled by the learned trial court as a seizure witness in respect of seizure of a piece of bamboo. In re-examination PW 2 stated as follows ------ I went along with Ramrish from my house to some distance as Ramrish was going to his home from my home after taking liquor, at my home, for the occasion of Bohag Bihu. Both Ramrish and Haren were engaged in Marpit in front of the house of Pradip Boro. Haren assaulted Ramrish initially by hands but on finding a piece of bamboo he took it and hit on the abdomen of Ramrish. Only once he pushed the piece of bamboo to hit on the abdomen of Ramrish. Then I separated both. Both Ramrish and Haren were engaged in Marpit in front of the house of Pradip Boro. Haren assaulted Ramrish initially by hands but on finding a piece of bamboo he took it and hit on the abdomen of Ramrish. Only once he pushed the piece of bamboo to hit on the abdomen of Ramrish. Then I separated both. No one was present there at that time; may be at about 3 p.m. Both went in their own direction. One house of Pradip was dismantled for reconstruction and so bamboos and split pieces of bamboos were lying in front of his house. Haren took a split piece of bamboo stronger and bigger in size than the one police picked up from that place. M. Ext. 1 is not that piece of bamboo by which Haren hit on the abdomen of Ramrish. That piece of bamboo was stronger and bigger but the one picked up and seized by the IO is thin and weak which is M Ext. 1. ----Further Cross---- Both Haren and Ramrish were under the influence of liquor. They abused each other in Tiwa language. I could not understand what they stated. When I separated both, they were alright. 6. All the other non official witnesses are hearsay witnesses and no significance can be attached to their evidence. The court is called upon to examine whether the conviction and sentence as awarded by the learned trial court is sustainable under the law in the facts and circumstances of the case. 7. The medical officer Dr. Bhogeswar Thakuria was examined as PW 8. He conducted the post-mortem examination on the dead body of Ramrish Bordoloi. In the post-mortem report he opined that the exact cause of death was due to shock and haemorrhage as a result of splenic rupture due to blunt abdominal injury over the spleen. The medical officer found only one injury in the abdomen at peritoneus, which was full of blood and blood clot. He also found linear tear at the back of the spleen with profuse bleeding. He found slight swelling over the left side of chest on 8th and 9th ribs with ecchymosis below it. It appears that the deceased suffered most due to linear tear at the back of the spleen and profuse bleeding through it. He also found linear tear at the back of the spleen with profuse bleeding. He found slight swelling over the left side of chest on 8th and 9th ribs with ecchymosis below it. It appears that the deceased suffered most due to linear tear at the back of the spleen and profuse bleeding through it. On being asked in the cross examination the medical officer stated that the injury cannot be caused without use of blunt force by simply coming in touch or contact with some split piece of bamboo. There was force applied which is manifested in the 8th and 9th ribs with ecchymosis at that location. Further, on being asked by the court as to whether the said injury could be caused due to hitting by split piece of bamboo as well as by fist blows, he replied that the injury could be caused by hitting by split piece of bamboo or by fist blows also. But he clarified in the further cross examination that the piece of bamboo should be of reasonable size and not so thin and light like 1/8th split piece of a bamboo. 8. As per the evidence of PW 7, I.O. of the case, during investigation, he seized one split bamboo of about 8 feet long from the place of occurrence in presence of the witnesses vide Ext. 2. The seized split piece of bamboo was produced before him by the complainant Rafan Bordoloi. The split bamboo was produced before the court and exhibited as material Ext. A. The seizure list, Ext. 2 was signed by 4 witnesses viz. Nandeswar Deuri, Ganesh Bordoloi, Phukan Bordoloi and Dinesh Bordoloi. Out of them 3 were examined by the prosecution. Dinesh Bordoloi was examined as PW 1. He stated that the deceased was his younger brother. He is not an eye witness but he saw the dead body and came to know that the deceased Ramrish took liquor along with Kartik and thereafter there was a quarrel between Ramrish and Haren. Haren assaulted Ramrish, as a result of which he died. He saw a sign and symptom of injury on the waist of Ramrish. Haren was kept sitted by villagers after the incident and on arrival of police accused Haren showed the place of occurrence and also one split piece of bamboo which was seized by police. Haren assaulted Ramrish, as a result of which he died. He saw a sign and symptom of injury on the waist of Ramrish. Haren was kept sitted by villagers after the incident and on arrival of police accused Haren showed the place of occurrence and also one split piece of bamboo which was seized by police. He put his left thumb impression on the seizure list. PW 1 on being re-examined, stated before the trial court that during investigation one split bamboo piece was seized by police vide Ext. 2 but the said split piece of bamboo was not shown to him by the police. He did not know whether material Ext. A, split piece of bamboo, was seized by police or not. Another seizure witness Sri Ganesh Bordoloi, PW 5, stated that he arrived at the place of occurrence after the incident and he put his signature on the seizure list at the police station. He stated categorically that nothing was seized in his presence. PW 9, Sri Phukan Bordoloi, the last witness, also clearly deposed that he was not present at the time when Kartik Boro (PW 2) showed the piece of split bamboo to police and the said piece of split bamboo was not seized in his presence. The eye witness Kartik Boro (PW2) in his investigation before the court stated that M. Ext. 1 is not that piece of bamboo by which accused Haren hit on the abdomen of Ramrish. According to him, that piece of bamboo by which the accused hit on the deceased was stronger and bigger than the one picked up and seized by the I.O. which is thin and weak. 9. Rafan Bordoloi, father of the deceased and informant in this case was examined as PW 3. He deposed that the deceased was his son and he knows the accused. The incident took place on the occasion of Bohag Bihu. His son Ramrish took liquor with Kartik and when they were returning home, the accused Haren assaulted Ramrish. He was informed by Kartik that his son sustained injuries at his waist and he filed FIR written by one Ananta Boro(PW 4). 10. From the evidence on record one fact is well established that the deceased was under influence of liquor as he was enjoying Bihu by taking liquor with PW 2. He was informed by Kartik that his son sustained injuries at his waist and he filed FIR written by one Ananta Boro(PW 4). 10. From the evidence on record one fact is well established that the deceased was under influence of liquor as he was enjoying Bihu by taking liquor with PW 2. The said PW 2, after having liquor at his house with the accused, came upto the place of occurrence to see him return to his house. At the place of occurrence they met the accused and a quarrel took place between the deceased and the accused in presence of PW 2. There was a scuffle between the two and the accused hit the deceased by a piece of split bamboo on his abdomen. As per the evidence of PW 2 (eye witness), the quarrel and the physical clash between the accused and the deceased ended and they proceeded towards their respective destinations/directions. The eye witness, PW 2, also returned home. This eye witness never stated in his deposition that after being hit the deceased fell down or he was unable to move due to receipt of injury on his person. The evidence of PW 2 is that the deceased was no doubt assaulted by the accused, yet he was in a position to move and he in fact moved forward after the end of the quarrel. The deceased before leaving the place of occurrence did not tell PW 2 that he received grievous injury or he was unable to move and needed assistance. As per the inquest report, Ext. 3, which was prepared by the I.O., the deceased was found lying in front of the verandah of their house and it was identified by Rafan Bordoloi (PW 3), the father of the deceased. As per evidence of PW 1, Dinesh Bordoloi, on being informed by the wife of Pradip Boro that Ramrish was lying dead on the road, he along with his father and some other boys of the village went and brought Ramrish home and informed the police. They have not stated at what time they came and took charge of the dead body and returned home. The post-mortem report does not mention the approximate time of receiving the injury. The public prosecutor nor even the defence counsel asked the medical officer about the age of the injury. 11. They have not stated at what time they came and took charge of the dead body and returned home. The post-mortem report does not mention the approximate time of receiving the injury. The public prosecutor nor even the defence counsel asked the medical officer about the age of the injury. 11. I have gone through the post-mortem report, Ext. 4 along with the evidence of PW 8. Nothing has been mentioned in the post-mortem report as to whether the injury found was grievous in nature and the death might have been caused due to such injury. The public prosecutor as well as the defence counsel, while examining/cross examining the medical officer did not try to bring on record that the injury was grievous in nature. Even the defence counsel in cross examination made no attempt to bring out from the mouth of the medical officer that the injury found out by him on the person of the deceased was grievous enough to cause death in the ordinary course of nature. 12. The evidence of the sole eye witness is quite categorical and clear in regard to incident of quarrel and scuffle between the deceased and the accused and the weapon used by the accused person in assaulting the deceased. It was a piece of split bamboo collected from the nearby house and the accused hit the deceased on his abdomen. The deceased, as per the evidence of the eye witness, left the place of occurrence after the end of the quarrel. So also the accused left the place of occurrence and then only the eye witness himself left the place of occurrence and returned home. Nothing unusual, except the marpit between the deceased and the accused, was seen by the eye witness. Nobody saw the injured Ramrish lying at the place of occurrence. There was no occasion for the eye witness to call any person from the nearby place of occurrence as he did not see anything unusual. What happened after all the three persons left the place of occurrence is not known nor did the I.O. try to find out during his investigation what actually happened after the 'marpit' came to an end and PW 2 left the place of occurrence. 13. The Court has to examine the veracity of the evidence of eye witness PW 2. What happened after all the three persons left the place of occurrence is not known nor did the I.O. try to find out during his investigation what actually happened after the 'marpit' came to an end and PW 2 left the place of occurrence. 13. The Court has to examine the veracity of the evidence of eye witness PW 2. Whether his evidence in regard to leaving of the place of occurrence by both the accused and the deceased and their proceeding towards respective destination is believable and acceptable ? This piece of evidence of the eye witness goes against the prosecution and as such he should have been declared as a hostile witness but no such demand was made by the prosecution at the time of recording his evidence. The eye witness did not lend any support to prosecution. As a result it must be accepted that the deceased was not lying injured at the place of occurrence and he was not lying dead at the place where the marpit took place. Once it is found or proved that the deceased was not lying on the ground after the marpit, rather he was proceeding normally after the end of marpit, the prosecution cannot claim that the eye witness deposed falsely against the prosecution, more so when it failed to make a demand for declaring him a hostile witness and take an opportunity of cross examining him to impeach his credibility as an eye witness and shatter his evidence. 14. The court, on the face of above evidence of PW 2, eye witness, can hold the appellant innocent and acquit him easily. But can it really be done so on the face of medical evidence ? The medical evidence is that there is linear tear on back of the spleen with profuse bleeding coming through it. The medical officer, PW 8 opined the said rupture/tear was due to blunt abdominal injury over the spleen. The eye witness, PW 2 also deposed that the appellant hit on the abdomen of Ramrish with a split piece of bamboo. The description of crime weapon and the part of the body hit on the deceased fit in the nature of injury found on the exact part of the body of the deceased. The deceased as per the post mortem report, was a healthy young man of 20 years. The description of crime weapon and the part of the body hit on the deceased fit in the nature of injury found on the exact part of the body of the deceased. The deceased as per the post mortem report, was a healthy young man of 20 years. The impact of the assault by a blunt object on his abdomen may not be immediate and he may not have fallen down immediately but the chance of such injury turning fatal to him after sometime cannot be ruled out on the face of opinion expressed by the medical officer on the said injury. If the evidence of eye witness is read with the medical evidence taking into consideration the entire facts and circumstances of the case, it invariably leads to a conclusion that the sole assault given by the appellant by a piece of split bamboo on abdomen of the deceased, caused death to Ramrish and the appellant is liable to punishment for his offence. The learned trial court, in my considered view, rightly convicted him u/s 304 Pt-II IPC which I uphold with agreement. However, on the question of sentence, I am not fully in agreement with the learned trial court. As per the evidence on record, the deceased rebuked the appellant in faulty language when he, as a well wisher advised him not to take too much liquor. The deceased first assaulted the appellant by hand and then being provoked the appellant dealt a blow on the deceased by a split bamboo piece on his abdomen. From the evidence available on record, there is no doubt at all that the accused inflicted only one blow with a blunt split bamboo piece on the spur of the moment causing a lone linear tear on the back of the spleen and the said injury is not shown to be sufficient in the ordinary course of nature to cause death. 15. 15. I would like to compare this case with one Shivappa Buddappa Kolkar -VS- State of Karnataka and Ors.; (2004) 13 SCC 168 , a case where the accused inflicted a single blow with an axe on the head of the deceased on the spur of the moment causing the depressed fracture on skull bone but intention to cause death was not made out, nor was the injury inflicted shown to be sufficient to cause death in the ordinary course of nature, yet the Apex Court set aside the order of conviction u/s 302 IPC passed by the Karnataka High Court and converted it to conviction u/s 304 Part-II IPC and sentenced to 5 years' imprisonment and fine of Rs. 7,000/-. I have noted that in the present case the appellant used no dangerous weapon like sharp axe or dao to inflict the injury and the injury did not cause instantaneous death to the deceased. In the aforesaid facts and circumstances, in my considered view, a sentence of R.I. for 4 years and fine of Rs. 3,000/- to be paid to parents of the deceased, in default, to pay the fine, further S.I. for 2 months, would meet the ends of justice. It is ordered accordingly. 16. In view of the above discussions, I uphold the impugned conviction and modify the sentence as indicated above. The appeal stands partly allowed with modification in the sentence. Court has all its appreciation for the legal assistance received from Ms. B. Bhuyan as Amicus Curiae and direct the Assam State Legal Services Authority to pay her an amount of Rs. 5,000/- (Rupees five thousand) only as legal fee. Return the LCR forthwith.