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2014 DIGILAW 1050 (GAU)

Diful Das v. State of Assam

2014-12-11

C.R.SARMA, PRASANTA KUMAR SAIKIA

body2014
JUDGMENT C.R. Sarma, J. 1. Heard Ms. B. Bhuyan, learned Amicus Curiae, appearing for the appellant Also heard Mr. K.A. Mazumder, learned Addl. P.P., Assam, appearing for the state respondent This appeal is directed against the judgment and order dated 12.11.2012, passed by the learned Addl. Sessions Judge, FTC, Nagaon, in Sessions case No. 76 (N)/2008. By the impugned judgment and order, the learned Sessions Judge, while convicting the appellant under Section 302 IPC, sentenced him to suffer imprisonment for life and pay fine of Rs. 2,000/- in default suffer R.I. for one month for his conviction under Section 302 IPC. No separate sentence has been awarded in respect of the conviction under Section 323 IPC. 2. The prosecution case, in brief, is that there was a dispute between the informant side and the appellant regarding their land. On 22.04.2006 at about 3-30 p.m., when the appellant was digging a drain in the said land of the informant (PW-1), his brother Mohan Das @ Dhan Das @ Bulari Das (hereinafter called the deceased) coming to know about the digging of the drain, appeared in the place where the appellant was working and a quarrel took place amongst them. At this, though the appellant attempted to give a dao blow on the chest of PW-4 as the same had fallen on the head of the deceased causing his death. The wife of the deceased i.e. the PW-1, lodged the FIR with the police. On receipt of the said FIR, police registered a case and launched investigation in the case. 3. During the investigation, police apprehended the appellant and his sister Smti. Lakhimai Das, examined the witnesses, prepared sketch map (ext. 7), prepared inquest report (ext. No. 8) and forwarded the dead body for post mortem examination. 4. At the close of the investigation, police submitted charge-sheet against the appellant under Section 302/323 IPC. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, 1st Class, Nagaon, committed the case to the Court of Sessions. The learned Sessions Judge framed charges under Section 302/323 IPC. The charges were read over and explained to the accused person to which he pleaded not guilty. He claimed to be tried. The offence being exclusively triable by the Court of Sessions, the learned Judicial Magistrate, 1st Class, Nagaon, committed the case to the Court of Sessions. The learned Sessions Judge framed charges under Section 302/323 IPC. The charges were read over and explained to the accused person to which he pleaded not guilty. He claimed to be tried. In order to prove their case, the prosecution, examined as many as 15 witnesses including the medical officer (PW-10), who performed the autopsy on the dead body, and the Investigating Officer (PW-15). After examination of the prosecution witnesses, the accused person was examined under Section 313 Cr.P.C. He denied the allegations brought against him and declined to adduce defence evidence. 5. Considering the evidence on record the learned Sessions Judge convicted and sentenced the appellant as narrated above. Hence, this appeal. 6. Ms. B. Bhuyan, learned Amicus Curiae, taking this Court through the evidence, on record, has mentioned that there is no substantive evidence except the evidence given by P.W. Nos. 4, 7 and 9 against the appellant and that the prosecution failed to establish that the appellant had given the dao blow on the deceased, with pre-motivation and intention to cause his death. It is submitted that in view of existing land dispute between the both the parties, the occurrence took place in the hit of passion upon a sudden quarrel. It is also submitted that the fact that the appellant had given a single blow on the deceased indicates that he had no intention to cause his death. In view of above, the learned Amicus Curiae has submitted that the conviction and the sentence under Section 302 IPC are not maintainable and liable to be interfered with. 7. Supporting the impugned judgment and order, passed by the learned trial Judge, Mr. K.A. Mazumder, learned Addl. P.P. has submitted that the evidence of PW Nos. 4, 7 and 9 who were the eye witness to occurrence, is sufficient to show that the appellant had inflicted the fatal blow on the head of the deceased with intention to cause his death. It is submitted that the prosecution could prove, beyond all reasonable doubt, that the appellant had caused the death of the deceased. The learned Addl. PP. has submitted that the impugned judgment and order needs no interference. 8. It is submitted that the prosecution could prove, beyond all reasonable doubt, that the appellant had caused the death of the deceased. The learned Addl. PP. has submitted that the impugned judgment and order needs no interference. 8. Having heard the learned counsel appearing for both the parties, we have carefully perused the evidence on record. Admittedly, except the PW Nos. 4, 7 and 9, no other witnesses saw the occurrence. Other non-official witnesses came to the place occurrence after the incident. PW-4, Sri Bitupan Das, who was the brother of the deceased stated that when he was waiting by the side of the PWD road, his brother Sri Mohan Das (i.e. the deceased) called him to see the act of digging a drain by the appellant 9. According to this witness, on being so informed, he along with his mother and the deceased rushed to the place where the appellant was digging the drain. He stated that, on their arrival in the said place, the appellant had given a dao blow on the left side of his chest with a meat dao, but as he stepped back, his brother i.e. the deceased sustained cut blow on his head. He further stated that his brother Mohan Das was shifted to the hospital but he succumbed to the injuries sustained by him. 10. From the evidence of this witness, it appears that there was a land dispute between both the parties and the appellant, prior to the incident, was digging a drain. The incident took place due to appearance of the PW-4, his mother and the deceased. It appears that they, after their arrival in the said place of occurrence raised objection with regard to digging of the drain on the boundary. Hence, it transpires from the evidence of PW-4 that the occurrence take place due to appearance of the appellant and others in the place of occurrence. 11. The said evidence indicates that the appellant had no pre-meditation or intention to cause any injury to the deceased and his brother. The said evidence of PW-4 lead to find that the occurrence took place due to a sudden quarrel and in the hit of passion. In tune with the evidence of PW-4, Mr. 11. The said evidence indicates that the appellant had no pre-meditation or intention to cause any injury to the deceased and his brother. The said evidence of PW-4 lead to find that the occurrence took place due to a sudden quarrel and in the hit of passion. In tune with the evidence of PW-4, Mr. Mahiram Das, deposing as PW-7, stated that, on hearing hue and cry he went out from his house and saw the appellant giving blow on the head of the deceased. He stated that the deceased succumbed to the injuries sustained by him. Smti. Madoi Das, who was the mother of the PW-4 and the deceased has been examined as PW-9. She stated that finding the appellant digging a ditch (drain) on her land, she raised objection and accordingly the appellant had stopped digging the drain. She further stated that at about 3 p.m. her two sons i.e. PW-4 and the deceased, after returning from the field visited the place where the drain was dug and that the appellant had hacked Bitopan with a meat dao. According to this witness though he tried to resist the appellant, the appellant had pushed her away and she became unconscious. She further stated that she had seen the appellant giving blow on the head of the deceased with a meat dao, as a result of which the deceased died. From the evidence of PW-9, it also appears that a land dispute regarding digging of the drain took place between both the parties and the occurrence took place due to the said dispute. 12. Carefully examining the above discussed evidence of the said eye witnesses, we are inclined to hold that the appellant had no pre-meditation or intention to cause the death of the deceased. Therefore, the offence committed by the appellant will not fall under the provision of Section 302 IPC. In our considered opinion the offence committed by the appellant will fall under Section 304 Part-I IPC. From the evidence of PW-4 and PW-9 it has been clearly found that the appellant had given only one dao blow on the head of the deceased. The said evidence, given by PW-4 and PW-9 has been supported by PW-5, who performed the autopsy in respect of the dead body of the deceased. From the evidence of PW-4 and PW-9 it has been clearly found that the appellant had given only one dao blow on the head of the deceased. The said evidence, given by PW-4 and PW-9 has been supported by PW-5, who performed the autopsy in respect of the dead body of the deceased. The type of the weapon used and the nature of the injury inflicted and the part of the body (vital part), on which the dao blow was inflicted, lead to hold that the appellant has caused the injury by giving the fatal blow, on the deceased with the intention of causing the death or of such fatal injury as was likely to cause the death. Therefore, the offence committed by the appellant will come under the provision of 304 Part-I IPC. In view of above, we have no hesitation in holding that the conviction and sentence recorded under Section 302 IPC are not maintainable. Accordingly, we set aside the said conviction and sentence and modify the same to one under Section 304 Part-I IPC. Accordingly, we sentence the appellant to suffer rigorous imprisonment for 8 years and pay fine of Rs. 2,000/- in default suffer rigorous imprisonment for 6 (six) months. The appellant shall be entitled to set off under Section 428 Cr.P.C. Before we part with this record, we acknowledge, with appreciation, the service rendered by Ms. B. Bhuyan, learned Amicus Curiae and order that an amount of Rs. 7,000/- be paid to Ms. Bhuyan as her remuneration by the State. Return the LCR.