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2015 DIGILAW 123 (GAU)

ANIL BANIA v. STATE OF ASSAM

2015-02-05

B.K.SHARMA

body2015
ORDER (ORAL) 1. This appeal is against the judgment of conviction dated 26.08.2013 of the learned Additional District & Sessions Judge (FTC), Kamrup, Rangia in Sessions Case No. 217(K)/2002, by which, while convicting the accused/appellant u/s 304 (Part-I) IPC, he has been sentenced to undergo rigorous imprisonment for 07(seven) years with a fine of Rs.5000/- (Rupees five thousand) and in default, further imprisonment for 03(three months). The period which the accused/appellant has already undergone in detention is to be set of as per Section 428 of Cr.P.C. 2. As narrated in the impugned judgment of conviction, the prosecution story in brief is that on 20.12.1999 at about 3 P.M, when the first informant (PW-2) and his elder brother Biren Bania were planting banana plants in their land, the accused persons came there armed with dagger and lathi and attacked them from back causing grievous injuries. Because of the injuries sustained by Biren Bania, he was sent to GMCH, but he succumbed to his injuries at 10.30 P.M. on that very night. 3. Narrating the above incident, the informant lodged the FIR on the basis of which, Baihata Chariali P.S Case No.149/1999 was registered u/s 147/325/307 IPC. The FIR named the accused Dulal Bania; Anil Bania; Udhab Bania; Hiran Bania and Dashami Bania. During investigation, another accused, namely, Bhabani Bania was also arrested. On completion of the investigation, charge sheet was submitted u/s 147/302 IPC. When it was found that Hiran Bania was a juvenile, her case was sent to Juvenile Justice Board at Guwahati. 4. During trial, prosecution examined 12 witnesses and the statements of the accused persons were also recorded u/s 313 Cr.P.C. The accused persons denied the allegation and pleaded that the deceased Biren Bania had occupied land of accused persons and prevented them from going to their own land on the day of occurrence. On that day, when accused Dashami Bania (mother of other accused persons) went to the land to graze her goat, Biren (since deceased) attacked her with lathi and broke her left hand. The accused Dashami then went to Baihata police station to lodge FIR, but the police refused to register the same. 5. On that day, when accused Dashami Bania (mother of other accused persons) went to the land to graze her goat, Biren (since deceased) attacked her with lathi and broke her left hand. The accused Dashami then went to Baihata police station to lodge FIR, but the police refused to register the same. 5. PW-11 is the doctor, who conducted the postmortem on the dead body of the deceased on 21.12.1999 and found the following injuries:- (i) One stitched wound obliquely placed on intero lateral aspect of left parietal region of scalp 7cm x 1cm scalp layers deep present 6 cm left from midline. The wound was lacerated one. Blood clots were firmly adherent in the wound. (ii) One abrasion on the lateral aspect of left knee joint. (iii) One abrasion on lateral aspect of left elbow joint. According to this witness, there was contusion and hemorrhage on the frontal and left parietal and mid and left side of occipital region. The injury on the skull was linear fracture on the left temporo parietal bone. According to this witness, the cause of death was due to the injuries sustained by the deceased. The injuries were ante mortem and caused by blunt forced impact and homicidal in nature. 6. PW-1 was about 12 years of age when the incident occurred and so also PW-6. Both these witnesses are eye witnesses to the occurrence. They in their deposition stated as to how the accused persons attacked the deceased coming from behind. PW-1 was specific that he could see the accused/appellant striking his father with dagger. Both the witnesses corroborated each other. 7. PW-2 is the informant, who in his deposition stated that on 20.12.1999 at about 3 P.M, he was planting banana plants on his land and his elder brother Biren Bania came there. Just at that time, the accused persons arrived there and attacked them. Out of fear, they tried to flee from the place of occurrence, but the accused persons chased them and Biren fell down on a ditch, whereupon the accused persons pressed him to the ground and the accused/appellant attacked him on his head with a dagger. 8. PW-3 is the wife of the deceased, who in her deposition stated that she was informed by her son (PW-1) that there was quarrel between his father and the accused persons. 8. PW-3 is the wife of the deceased, who in her deposition stated that she was informed by her son (PW-1) that there was quarrel between his father and the accused persons. She rushed to the spot and could see the accused/appellant attacking her husband with a dagger and another accused Udhab with a lathi. They also came towards her, but the accused Hiren Bania snatched the dagger from Anil and Bhabani and Dashami threw the dagger to the nearby water. Her husband was taken to hospital, where he died. 9. PW-5 in her deposition stated that PW-3 was found crying on the road stating that her husband was attacked. She and other people came out of the house and saw some of the accused with lathi in their hands chasing PW-3. 10. PW-7 and PW-8 stated that coming out of home, they could see the deceased with head injury caused by a dagger. 11. PW-10 is the In-charge of Guwahati Medical College Hospital out post, who took necessary steps for preparing inquest report and conducting postmortem on the dead body of the deceased. 12. PW-12 is the Investigating Officer, who conducted the investigation. He generally stated about the investigation and steps taken towards seizure etc. 13. From the above evidence, what is seen is that although the accused persons attacked the deceased along with PW-2, but the fatal blow was by the accused/appellant. The testimony of PW-2 and PW-3 reveals that the accused Dashami, Hiren and Bhabani snatched the dagger from the hand of accused/appellant and threw to a pond. The eye witnesses are PW-1, PW-2, PW-3 and PW-6, from whose evidence it appears that the accused persons had been to the place of incident out of anger because of assaulting Dashami as discussed above. Out of such anger, they went to the place of occurrence and confronted PW-2 and the deceased. The evidence also suggests that the accused/appellant was armed with a dagger. However, he gave a single blow. The medical evidence is that there was stitched wound obliquely placed on intero lateral aspect of left parietal region of scalp 7cm x 1cm. Scalp layers deep present 6cm left from midline. The wound was lacerated one. The evidence also suggests that the accused/appellant was armed with a dagger. However, he gave a single blow. The medical evidence is that there was stitched wound obliquely placed on intero lateral aspect of left parietal region of scalp 7cm x 1cm. Scalp layers deep present 6cm left from midline. The wound was lacerated one. This will go to show that though the accused/appellant attacked the deceased with a dagger, but he did not stab the deceased on the head from the pointed part of the dagger or from the sharp edge side. Had there been intention to kill the deceased, he would have stabbed on his head by the pointed side of the dagger. It is in the aforesaid circumstances, Mr. P. Kataki, learned Amicus Curie submits that at best it can be a case falling u/s 304 (Part-II) IPC inasmuch as, there was no intention on the part of the accused/appellant to cause death of the deceased or to cause such bodily injury as is likely to cause death. 14. As the learned trial Court itself has observed that the accused/appellant had a reason to get angry with the deceased because of the assault perpetrated to Dashami, who is the mother of other accused persons. Because of such assault, she suffered fracture on her hand. Land dispute is also established from the evidence of the witnesses. There was no other reason for the accused/appellant to assault the deceased. 15. From the above evidence, it is clear that the accused/appellant did not have any intention to kill the deceased, but the act done by him was with the knowledge that the same was likely to cause death. He was accompanied by other accused persons whom the learned trial Court have acquitted. 16. In view of the above, the impugned judgment of conviction stands modified with the conviction of the accused/appellant u/s 304 (Part-II) IPC. 17. As regards the sentence, Mr. Kataki, learned Amicus Curie has prayed for reduction of the same having regard to the facts and the age of the accused/appellant. When his statement was recorded u/s 313 Cr.P.C, he was 27 years of age. If that be so, on the date of incident, he was about 15 years of age. However, his plea of juvenile was rejected by the learned trial Court vide order dated 05.07.2012. When his statement was recorded u/s 313 Cr.P.C, he was 27 years of age. If that be so, on the date of incident, he was about 15 years of age. However, his plea of juvenile was rejected by the learned trial Court vide order dated 05.07.2012. Even if that be so, he was hardly 18/19 years of age. 18. Considering all these factors including the background of the incident discussed above, the accused/appellant is sentenced to undergo rigorous imprisonment for 02(two) years while maintaining the fine imposed vide the impugned judgment of conviction for the offence committed u/s 304 (Part-II) IPC. 19. The appeal partly succeeds with the modified conviction and sentence. 20. Registry shall send down the LCR along with a copy of this judgment and order. 21. Before parting with the case record, I place on record my words of appreciation for the services rendered by Mr. P. Kataki learned Amicus Curie. It is hereby provided that he will be entitled to hearing fee of Rs.5000/- (Rupees five thousand) to be paid by the appropriate authority on production of the copy of this judgment and order, which the registry shall provide to him.