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2015 DIGILAW 1256 (GAU)

Arun Orang @ Samlu Orang v. State of Assam

2015-09-30

INDIRA SHAH, P.K.SAIKIA

body2015
JUDGMENT : P. K. Saikia, J. This appeal is directed against the judgment and order dated 15.03.2012, passed by the learned Sessions Judge, Sivasagar, in Sessions Case No. 162(S-S)/2008 convicting the appellant, namely, Sri Arun Orang @ Samlu Orang of offence u/s 302 IPC and sentencing to him to imprisonment for life with a fine of Rs. 5,000/- i.d., R.I. for another 6 months for the offence aforesaid. 2. Being aggrieved by and dissatisfied with the aforesaid judgment, the appellant Sri Arun Orang @ Samlu Orang (herein after referred to as the ‘accused person’) has preferred this appeal from jail citing several infirmities in the judgment under challenge. 3. We have heard Mr. S. Borgohain, learned counsel for the appellant and also heard Ms. S. Jahan, learned Addl. PP, Assam. 4. The brief facts necessary for disposal of the present appeal, are that on 08.07.2008 at about 4:30 pm, the accused person committed murder of one Ramdayal Garh in the backyard of the shop of Sri Arabinda Sarma (PW 2) by inflicting dao blows on his head and neck and other body parts killing him at the PO itself instantaneously. 5. An FIR to that effect, was lodged with the O/C, Gelekey police station same day by one Bishnu Tanti. On receipt of the FIR, O/C, Gelekey police station registered a case vide Gelekey P.S. Case No. 33/2008 u/s 302 IPC and ordered one Sri Deepak Sutradhar, S.I of police, to investigate the case. 6. Being so ordered, Sri Sutradhar, S.I. of Police visited the PO, conducted inquest on the dead body, sent the same to hospital for post mortem examination, and examined the witnesses. In the meantime, the accused person surrendered before the police with a dao. The I.O. of the case, (Sri Sutradhar), seized the dao allegedly used in committing the crime in question and did other needful and on conclusion of investigation, he submitted charge sheet u/s 302 IPC against the accused person and forwarded him to the court to stand his trail. 7. The Magistrate before whom charge sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. 7. The Magistrate before whom charge sheet was so laid, committed the case to the Court of Session since the offence u/s 302 IPC is exclusively triable by the Court of Session. On commitment of the case and on hearing the learned counsel for the parties, learned Sessions Judge, Sivasagar was pleased to frame charge u/s 302 IPC and charge, so framed, on being read over and explained to the accused person he pleaded not guilty and claimed to be tried. 8. During trial, the prosecution has examined as many as 15 (fifteen) witnesses including the informant, the MO and the IO of the case. The statement of accused person u/s 313 CrPC was also recorded. Accused had admitted to have killed the victim aforesaid since the victim tried to attack him and kill him at the PO with a knife and in that process, the victim got killed. However, on being so required, he denied to adduce any evidence in his defence. 9. On conclusion of trial and on hearing the learned counsel for the parties, learned trial court was pleased to convict the accused person of offence u/s 302 IPC and sentenced him to punishment as aforesaid. It is that judgment which has been assailed in the present appeal. 10. Mr. S. Borgohain, learned counsel for the appellant, submits that the evidence on record, coupled with the confession and the statement of the accused person, recorded u/s 313 CrPC shows that the accused had killed the victim but the materials on record further reveal that the accused had to kill the victim when he met the victim at the PO in the eventful evening following which a quarrel took place between them over some domestic matters. 11. According to Mr. S. Borgohain, in that quarrel, the victim tried to kill the accused person for which the later had to attack him in self defence and in that process, the victim got killed. Therefore, on the materials on record, the learned trial court could not have convicted the accused person of offence u/s 302 IPC. Rather, on such materials, the accused ought to have been convicted of offence u/s 304 Part II of IPC. 12. He, therefore, urges this court to alter/modify the conviction of the accused person from a conviction u/s 302 IPC to a conviction u/s 304-II IPC and sentence him to punishment accordingly. 13. Rather, on such materials, the accused ought to have been convicted of offence u/s 304 Part II of IPC. 12. He, therefore, urges this court to alter/modify the conviction of the accused person from a conviction u/s 302 IPC to a conviction u/s 304-II IPC and sentence him to punishment accordingly. 13. On the other hand, Ms. S. Jahan, learned Addl. PP, submits that prosecution brought on record the evidence in the form of judicial confession. The accused in his own confession admitted to have killed the victim on the day in question which draws more and more support from the examination of the accused U/s 313 CrPC since in his statement u/s 313 CrPC, the accused had admitted to have killed the victim with dao in the eventful evening. 14. She further submits that there are some other circumstances in the form of evidence of witnesses who arrived at the PO just after the incident in question showing that on arriving at the PO, they found the victim lying dead with so many cut injuries on his body. The statements made in inquest report also demonstrate that the deceased was found sustaining very many cut wounds. 15. When such evidence are read together in the light of evidence , rendered by the doctor who was examined as PW 5, Dr. Lalit Bora, one would find that the victim died on sustaining cut wounds. Such evidence further reveals that on the all eventful evening, the accused person had brutally beaten the victim with dangerous weapon and that too on very vital part occasioning his death at the PO instantaneously. 16. When one read all the evidence together, there cannot be any escape from the conclusion that trial court has rightly convicted the accused of offence u/s 302 IPC and sentenced him to punishment as aforesaid. She, therefore, urges this court to affirm the judgment under challenge. 17. We have considered the rival submissions having regard to the judgment in question. On going through the evidence of witnesses, we have found that there is no manner of doubt that on the eventful evening, it is the accused person who subjected the victim to a barrage of assault by sharp object which occasioned his instantaneous death at the PO itself. 18. On going through the evidence of witnesses, we have found that there is no manner of doubt that on the eventful evening, it is the accused person who subjected the victim to a barrage of assault by sharp object which occasioned his instantaneous death at the PO itself. 18. The confession which the accused made before the Magistrate, Sri Manash Baruah (PW 12) as well as the statement which the accused rendered while being examined u/s 313 CrPC make such a position very clear which draws further supports from the other incriminating circumstances which the prosecution has brought on record through the evidence of different witnesses. 19. Now, the only question needs to be answered is whether on the materials available on record, the accused could have been convicted of offence u/s 302 IPC. On going through the confessional statement of the accused and other evidence on record, more particularly, the evidence of PW 8, Smti. Manika Urang as well as the statement of the accused recorded u/s 313 CrPC, it is found that on the eventful evening, the accused met the victim at the PO all of a sudden. 20. We have also found that a quarrel took place between them over some domestic matters in which both the persons have actively participated. We have also found the materials on record to hold prima facie that the victim had attacked the accused person first with a knife in his hand which ultimately angered the appellant so much so for which he killed the victim at the PO itself. 21. On considering the evidence on record, we have found that on the eventful evening, the accused person had killed the victim but he did so in a sudden quarrel without any premedication and without his taking undue advantage. Being so, in our considered opinion, on the materials on record it cannot be said that the prosecution has proved the charge u/s 302 IPC. 22. Rather on the basis of materials on record, more particularly, the nature of the wounds, site thereof on the body of the victim as well as the type of the weapon used in committing the crime in question, the learned trial court ought to have convicted the accused of offence u/s 304-I IPC. 23. 22. Rather on the basis of materials on record, more particularly, the nature of the wounds, site thereof on the body of the victim as well as the type of the weapon used in committing the crime in question, the learned trial court ought to have convicted the accused of offence u/s 304-I IPC. 23. Accordingly, we have found reason to accept the contention advanced by learned counsel for the appellant requesting this Court to alter/modify the conviction of the accused person from a conviction u/s 302 IPC to a conviction u/s 304-I IPC which we accordingly do. Accordingly, the conviction under challenge stands altered to a conviction U/s. 304 Part-I IPC. 24. We have also considered materials on record and found that a sentence of R.I. for 10 years with a fine of Rs. 5,000/- I.D. R I for another 6 months for the offence u/s 304 –I IPC would meet the ends of justice. 25. Accordingly, the accused is sentenced to suffer imprisonment for 10 years with a fine of 5,000/- i.d., R I for another 6 months for the offence u/s 304 –I IPC. 26. The period which the accused had already spent in jail is to be set of against the period of sentence. 27. Consequently, the present appeal is partly allowed as indicated above. 28. Return the LCR. 29. Registry will send a modified jail warrant in due course.