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2013 DIGILAW 457 (GAU)

Babul Munda v. State of Assam

2013-07-15

B.D.AGARWAL, INDIRA SHAH

body2013
JUDGMENT B.D. Agarwal, J. 1. The appellant herein, has been convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter, in short, 'IPC'), for killing a co-villager. Hence, this appeal is directed against the judgment dated 29.04.2009, passed by the learned Additional Sessions Judge, Sivasagar, in Sessions Case No. 35 of 2008. By this impugned judgment, the appellant has been sentenced to undergo Imprisonment for Life and also to pay a fine of Rs. 2,000/- (Rupees Two Thousand), with default stipulation of further RI for 4 (four) months. Being aggrieved with the conviction and sentence the convict has preferred this appeal from jail. We have heard Smt. R.D. Mozumdar, learned Amicus Curiae appearing on behalf of the appellant as well as Smt. B. Bhuyan, learned Additional Public Prosecutor for the State of Assam. We have also perused the impugned Judgment and the evidence tendered by the prosecution in the trial Court. 2. The prosecution case shows that both the appellant and the accused were co-villagers. It is also apparent that the deceased had good relation with one Lakhpati Karmakar since the deceased had adopted his wife as sister. The incident took place at about 07:00 pm on 05.11.2006. At that time, the deceased had gone to the house of the Lakhpati Karmakar to give 'Prasad' (offerings to a deity). Then, the quarrel took place in between the deceased and the accused and the accused dealt an axe blow on the forehead of the deceased and the deceased died due to the said injury. 3. PW-4 is the wife of Sri Lakhpati Karmakar. She has deposed that when the deceased came to her house the accused heard abusive language towards her. Hence, the deceased intervened and objected to it. Thereafter, PW-4 called her husband and challenged the accused, but he did not come out from his house. After some time, she heard about the murder of Ramen. PW-4 has also deposed that during investigation Police seized one blood-stained shirt and also one blood-stained axe from the house of the accused. 4. PW-2 has also spoken about the quarrel in between the deceased and the accused as well as about recovery of an axe from the house of the accused. It is true that according to PW-2 the axe was produced before the Police by the wife of the accused and the police person was not accompanied by the accused. 4. PW-2 has also spoken about the quarrel in between the deceased and the accused as well as about recovery of an axe from the house of the accused. It is true that according to PW-2 the axe was produced before the Police by the wife of the accused and the police person was not accompanied by the accused. However, other witnesses have deposed that the accused had accompanied the Investigating Officer. 5. PW-10- is the wife of the accused. She has also admitted the fact that one axe was recovered from their house, which was hidden beneath the fire-wood and it was stained with blood. 6. PW-3 has deposed that when the accused was apprehended by the Police he was wearing two shirts. When the first shirt was removed they had noticed that the inner shirt was blood-stained and it was seized by the Investigating Officer vide Exhibit-4. 7. PW-5 has also spoken about the seizure of bloodstained shirt of the accused. From the evidence of the Investigating Officer, it appears that the blood-stained shirt was sent for forensic examination and as per the FSL report (Exhibit - 10), the shirt contained human blood. 8. In view of the aforesaid incriminating evidence, the learned Amicus Curiae appearing for the appellant did not press for total acquittal of the appellant. However, the learned Amicus Curiae submitted that since the offence was committed in the midst of the quarrel and without any enmity or motive the conviction should be converted under Section 304 Part-II IPC. 9. We find sufficient force in the submission of the learned Amicus Curiae. We have already noted earlier that the incident took place in the midst of a quarrel and, in fact, the quarrel had initially taken place in between the accused and the husband of PW-5, i.e., Sri Lakhpati Karmakar. However, the quarrel shifted towards the deceased when he intervened in the quarrel. Besides this, as per the medical evidence only one injury was inflicted on the deceased and that too without any enmity or motive to kill the person. Besides this, the accused did not flee away from the place of occurrence. He was available at home. 10. In view of the above, the appeal stands dismissed. However, the conviction of the appellant is converted from Section 302 to Section 304 Part-II IPC. 11. Besides this, the accused did not flee away from the place of occurrence. He was available at home. 10. In view of the above, the appeal stands dismissed. However, the conviction of the appellant is converted from Section 302 to Section 304 Part-II IPC. 11. Resultantly, the sentence is also reduced to the period already undergone by the appellant in jail. It may be mentioned here that the accused is in jail since 06.11.2006. In this way, the accused is in jail since last more than 6 1/2 years. Hence, it is ordered that the appellant shall be released from the custody forthwith. The Registry shall issue the release order(s). 12. The deceased was a young boy of 18 years and was unmarried. Hence, it is ordered that the Government of Assam shall pay compensation amount of Rs. 1,00,000/-(Rupees One Lac) to the family members of the deceased as provided under Section 357-A of the Criminal Procedure Code, 1973. The Government shall deposit the compensation amount in the Office of the learned Sessions Judge, Sivasagar, within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the family members of the deceased on proper identification and after obtaining proper receipt. 13. The Registry is directed to return the LCRs. with a copy of this judgment. At the same time, the Registry shall forward a copy of this judgment to the Chief Secretary, Government of Assam, for necessary action. We appreciate the valuable assistance rendered by Smt. R.D. Mozumdar, learned Amicus Curiae. It is ordered that she shall be entitled to one day's hearing fee.