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2014 DIGILAW 224 (GAU)

STATE OF ASSAM v. BALAI CHOUDHURY

2014-02-21

K.SREEDHAR RAO, P.K.SAIKIA

body2014
JUDGMENT-AND-ORDER Sreedhar Rao, J. The material-facts of the prosecution case disclose that one Zamal Uddin is deceased. PW-3 is his brother. PW-3 went to the lottery shop of the accused 3 and later when he was playing lottery the deceased came and told PW-3 not to play lottery while asked the accused 3 not to sell tickets to his brother. An altercation ensued, in which the accused 1 and 2 who are brother and father of the accused 3 also joined in the scuffle. Accused 3 pushed the deceased into a drain and later stabbed on his thigh with a knife and as a result the artery was cut resulting in profuse bleeding and the deceased succumbed to the injuries. When PW-1 another brother of the deceased came to the spot the deceased made oral dying declaration that it was the accused 3 who pushed him into the drain and caused the injuries and he gave a complaint with the local police afterwards. 2. After receiving a complaint from the brother of the deceased, police visited the spot, sent the dead body for post-mortem, recorded statement of the material witnesses and on completion of the investigation filed charge-sheet. Accused-persons were charged for committing offence under section 302 and 323, read with section 34 of the IPC. 3. The post-mortem report discloses that the death is said to be homicidal and is caused on account of shock, and haemmorhage to the thigh. 4. The trial court finds that the FIR is not recorded at the earliest, as also the examination of the informant. The version of PW-3 would show that the accused 3 has pushed the deceased into the drain. There is no further proper explanation as to the fact that the accused 3 also got into the drain to stab on the thigh of the deceased. On the basis of the evidence on record and the discrepant evidence of PW-3 the trial court has acquitted all the accused-persons. Hence the State is in appeal. 5. There is no further proper explanation as to the fact that the accused 3 also got into the drain to stab on the thigh of the deceased. On the basis of the evidence on record and the discrepant evidence of PW-3 the trial court has acquitted all the accused-persons. Hence the State is in appeal. 5. Upon a thorough consideration of the evidence on record and in particular the evidence of PW-3, who was an eye witness and who was playing lottery at the shop of the accused 3 when the deceased came there and told him not to play lottery while asked the accused 3 not to sell tickets to his brother which resulted in the scuffle in which the accused 3 stabbed on the thigh of the deceased we find that PW-3 states clearly that it is the accused 3 who stabbed on the thigh of the deceased. Besides, oral dying declaration was made by the deceased to PW-1 indicting the accused 3 for causing injuries to him, which resulted in the death. 6. In view of the incident taking place in the context of a scuffle the contention of the prosecution that accused 3 should be convicted for committing offence under section 302 of the IPC does not appear to be proper: exception to 300 of the IPC would apply to the accused 3 and he would be guilty of committing offence under section 304 part two of the IPC. With regard to the accused 1 and 2 there appears to be no material to interfere in the order of acquittal. The trial court has not properly appreciated the evidence of PW-3 and also has not properly given the reasons to reject the evidence of PW-3 that there is no proper explanation on the part of PW-3 that the accused 3 got into the drain and later stabbed on the thigh of the deceased. Therefore the opinion of the trial court on the evidence of PW-3 cannot be accepted, being an untenable one. In that view of the matter the appeal of the State against a blanket acquittal of the accused 3 who is the respondent 3 in the appeal is set aside. Accused 3 is convicted under section 304 part two of the IPC and sentenced to imprisonment for a period of ten years while the acquittal of the accused 1 and 2 is confirmed. Accused 3 is convicted under section 304 part two of the IPC and sentenced to imprisonment for a period of ten years while the acquittal of the accused 1 and 2 is confirmed. Accordingly the appeal is partly allowed. The trial court shall issue warrant for the accused 3, who is the respondent 3 in this appeal, for committing him to jail to serve the sentence, forthwith. Operative portion of the order be communicated to the trial court. 7. Fee of the amicus curiae Sri BM Choudhury who argued for the accused-persons is fixed at rupees seven thousand which will be paid to him by the State.