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2013 DIGILAW 874 (GAU)

Kumar Khudal @ Uma v. State of Assam

2013-12-17

K.SREEDHAR RAO, M.R.PATHAK

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Sreedhar Rao, J. Heard Mr. B. Gogoi, Amicus Curiae, and Ms. S. Jahan, Additional Public Prosecutor, Assam. The material facts of the prosecution case disclose that one Sugri Khodal is the deceased. PW2 is the son of the deceased. The accused is running a poultry firm. PW2 had taken a chicken on credit basis. The amount was not paid. The matter was arbitrated by elders and it was decided that PW2 should pay the value of the chicken purchased, to the accused. 2. On 23.12.2007, at around 7.00 p.m., the accused went to the house of the PW2 to demand payment of the money; PW2 could not pay the money. The accused got angry and tried to assault PW2. PW2, in order to escape, ran into the house. The deceased was sitting outside the house by the side of a fire place to worm himself since it was a winter. The accused took a wooden piece from the spot and hit on the head of the deceased. The deceased sustained injuries, he was taken to hospital on the next day and police was also informed. 3. The complaint was given by the son (PW2) naming that the accused has caused the death. The police conducted inquest (panchanama). The dead body is subjected to post mortem examination. The post mortem report discloses that the death was due to shock and hemorrhage as a result of fracture whole frontal bone and wound in the forehead. 4. The accused is charged for committing offence under Section 302 IPC. 5. In the evidence before the trial Court, P.W. 1 is the doctor, who conducted the post mortem examination. His evidence discloses that the injuries are ante mortem and the death is homicidal. 6. PW2 is the son, who is the complainant before the police. His evidence discloses that the accused came for demanding money. The accused argued and tried to assault him, PW2 ran into the house and the accused assaulted the deceased, who was sitting outside by the side of fire place. 7. PW3 is the scribe of the complaint. 8. PW4 is the daughter of PW2. She is inmate of the house and her evidence is in the similar line of PW2. 9. PW5 is the neighbor, his evidence discloses that accused came to demand money and there was quarrel. 7. PW3 is the scribe of the complaint. 8. PW4 is the daughter of PW2. She is inmate of the house and her evidence is in the similar line of PW2. 9. PW5 is the neighbor, his evidence discloses that accused came to demand money and there was quarrel. The accused tried to assault PW2, who ran into the house and the accused assaulted the deceased with the wooden piece. 10. PW7 is the father-in-law of the informant (PW2) and he had visited the house of the PW2 on that day and stayed there. His evidence discloses that he is a witness to the incident. The accused tried to assault PW2 initially, who ran away and entered into the house, the accused assaulted the deceased, which resulted to his death. 11. The trial Court, upon consideration of the ocular evidence coupled with the post mortem report, convicted the accused under Section 302 IPC, hence, this appeal. 12. PW9 is the wife of the deceased. Her evidence is in the similar line with that of the evidence of other eye witnesses' evidence. 13. Sri B. Gogoi, as Amicus Curiae for the accused-appellant submitted the following circumstances to assail the order of conviction: (i) The eye witnesses examined are all family members of the deceased except PW5 and they are interested witnesses. (ii) The eye witnesses to the incident say that the deceased admitted the liability to pay the amount; therefore, there would have been no motive on the part of the accused to assault the deceased. 14. The evidence of PW5, if read carefully, it is seen that in examination-in-chief, at the first place, he stated that he had witnessed the incident. In cross-examination also, he stated that the incident of the accused assaulting the deceased, which was preceded by a quarrel by accused with PW2 and PW2 entered into the house to escape the assault. He witnessed the accused assaulting the deceased, but in the latter portion of the cross-examination, he stated that he did not witness the incident because it was a dark night. In view of the inconsistent stand taken by PW5 at different stages, his evidence become incredible and cannot be relied upon. 15. PW5 is the only independent witness. If his evidence is rejected, the other witnesses are all relative and interested witnesses. Therefore, no credence can be given to the evidence of their relative witnesses. In view of the inconsistent stand taken by PW5 at different stages, his evidence become incredible and cannot be relied upon. 15. PW5 is the only independent witness. If his evidence is rejected, the other witnesses are all relative and interested witnesses. Therefore, no credence can be given to the evidence of their relative witnesses. 16. There is delay in lodging the F.I.R. The injured was not taken to hospital for treatment. It is in the evidence of the witnesses, who are family members that they took the meals in the night after the incident If the death was caused, perhaps, they would not have taken the incident so casually and have their routine meals in the night. 17. It is in the evidence of P.W. 1 that the injury sustained can also be caused by fall. Therefore, the deceased might have died on account of accidental fall and the accused has been vindictively and falsely implicated. 18. Upon thorough consideration of the facts and evidence, we find that PW2, PW4, PW5, PW7 and PW9 are all the family members, naturally live in the same house and their presence at the scene cannot be doubted. The evidence of the said witnesses categorically discloses that it is the accused, who visited the house to demand money and he tried to assault PW2, who escaped and ran into the house. Later on, the accused assaulted the deceased. The house is also a small house. About 5/6 members stayed in the house. 19. PW7 is the father-in-law, who appears to be a chance witness, but nonetheless there is nothing elicited in the evidence of PW7 to doubt his integrity. 20. The contention that the deceased was not taken for treatment immediately and no complaint is given, is fully explained by PW9. It is stated that the complainant and his family members are poor people and at odd hours of night, they could not have had the conveyance to take the victim for treatment, but the victim, perhaps, died on the same night. Therefore, no mala fide can be inferred for the delay in lodging the F.I.R. and failure to take the injured to the hospital. 21. The contention that the deceased had admitted the liability, there was no motive for accused to assault, does not appear to be a tenable argument. 22. Therefore, no mala fide can be inferred for the delay in lodging the F.I.R. and failure to take the injured to the hospital. 21. The contention that the deceased had admitted the liability, there was no motive for accused to assault, does not appear to be a tenable argument. 22. The fact remains that the accused visited the house of PW2, tried to assault him and indeed assaulted the deceased, which resulted into his death. The medical report discloses that the head injury could be caused by blunt object. Therefore, in the context of the said materials, the order of conviction recorded by the trial Court is sound and proper and does not call for interference. Accordingly, the appeal is dismissed. 23. The fees of Amicus Curiae is fixed at Rs. 7,000/-. The fee shall be paid by the State. Send back the LCR. _