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2015 DIGILAW 1519 (GAU)

Haren Das v. State of Assam

2015-12-11

C.R.SARMA

body2015
JUDGMENT AND ORDER C.R. Sarma, J. - This appeal is directed against the judgment and order, dated 21.6.2007, passed by the learned Additional Sessions Judge (FTC), Barpeta, in Sessions Case No. 40/2006. By the impugned judgment and order, the learned Addl. Sessions Judge, FTC convicted the appellant for the offence under Section 304 Part-II IPC and sentenced him to suffer rigorous imprisonment for 7 years and pay fine of Rs. 2,000/- in default suffer rigorous imprisonment for 2 months for the offence under Section 304 Part-II IPC. 2. Aggrieved by the said conviction and sentence, the convicted person, as appellant, has come up with this appeal. 3. The occurrence took place on 12.8.2004 at about 7.00 pm in the residence of Sri Nripen Das (PW 3). On the fateful evening, the appellant along with the Sri Sailesh Das visited the house of Sri Nripen Das, the younger brother of the appellant, namely Sri Rabi Das (hereinafter called, "the deceased") also joined them. Soon after arrival of the deceased in the house of Sri Nripen Das, the appellant asked him as to why he (deceased) had scolded the son of the appellant. At this a quarrel had taken place between the appellant and the deceased and the appellant had inflicted blows on the back side and head of the deceased with a Pira (wooden stool), as a result of which the deceased had fallen down in the courtyard. There was bleeding from the left side of the deceased and he was shifted to the hospital for treatment. While undergoing treatment, the deceased, on 19.8.2014, succumbed to the injuries, sustained by him. 4. On the date of death of the deceased, i.e. on 19.8.2004, an FIR was lodged with the police by the son of the deceased (PW 1). On receipt of the said FIR, police registered a case, under Section 304 IPC and launched investigation in to the matter. 5. During the course of the investigation, police examined the witnesses, seized the weapon of assault i.e. the wooden stool (Pira), collected postmortem examination report and submitted charge sheet under Section 304 IPC. 6. The offence, being exclusively triable by the court of Sessions, the case was committed to the court of Sessions and the learned Addl. Sessions Judge (FTC), Barpeta framed charges under Section 304 IPC. 6. The offence, being exclusively triable by the court of Sessions, the case was committed to the court of Sessions and the learned Addl. Sessions Judge (FTC), Barpeta framed charges under Section 304 IPC. The charge was read over and explained to the accused person, to which he pleaded not guilty. 7. In order to prove its case, the prosecution examined as many as 10 witnesses including the Medical Officer (PW 7) and the Investigating Police Officer (PW 10). At the close of the evidence, the accused person was examined under Section 313 Cr.P.C., he denied the allegations, brought against him and declined to adduce the defence witness. 8. Considering the evidence, on record, the learned Addl. Sessions Judge (FTC), Barpeta convicted and sentenced the appellant, as indicated above. 9. Mr. D. Chakraborty, learned counsel, appearing for the appellant, referring to the evidence, on record, has submitted that there are major contradictions in the evidence, given by the prosecution witnesses and that the delay of 8 days, in lodging the FIR, has not been properly explained and as such, the impugned conviction and sentence cannot be maintained. 10. The learned counsel for the appellant also has submitted that the present age of the appellant being 83 years, no purpose would be served by sentencing the appellant to jail at this stage of this age of the appellant. It is also submitted that the appellant had no intention or pre-meditation to cause death of the deceased and that occurrence had taken place in a sudden fight and hit of the moment. Therefore, it is submitted that the appellant deserves lenient consideration and the appellant should be exonerated from serving out the sentence. 11. Controverting the said argument advanced by the learned counsel for the appellant, Mr. B.J. Dutta, learned Addl. Public Prosecutor, Assam has submitted that, there is sufficient evidence, more particularly, the evidence of PW 3 and PW 4 to show that the appellant had given the fatal blows on the deceased and that the deceased died due to the said injuries, sustained by him. It is also submitted, that considering the facts and circumstances of the case and that the fact that the deceased was undergoing treatment, the delay of 8 days in lodging the FIR is not fatal for the prosecution, inasmuch as the FIR was lodged on the very day of the death of the deceased. It is also submitted, that considering the facts and circumstances of the case and that the fact that the deceased was undergoing treatment, the delay of 8 days in lodging the FIR is not fatal for the prosecution, inasmuch as the FIR was lodged on the very day of the death of the deceased. In view of the above, the leaned Addl. Public Prosecutor has submitted that the impugned conviction and sentence needs no interference, at this stage. 12. Having heard the learned counsel, appearing for both the parties, I have carefully perused the evidence on record. 13. There is no dispute that, on 12.8.2004, the appellant along with others had visited the house of PW 3 (Sri Nripen Das) and immediately, after their arrival in the house of the deceased, who was the brother of the appellant, a quarrel had taken place between the deceased and the appellant regarding scolding of the son of the appellant by the deceased. 14. From the evidence of PW Nos. 3 and 4, it appears that the appellant and others were offered wooden stools i.e. Pira to sit on and that the appellant, picking up a quarrel, had given two blows, with a pira i.e. wooden stool, on the back and head of the deceased, causing injury to him. 15. PW 3 and PW 4, who are the husband and wife, were the eye witnesses to the occurrence. Supporting the prosecution version, clearly stated that the quarrel had taken place between the appellant and the deceased, regarding scolding the son of the appellant by the deceased and that in the course of the said quarrel, the appellant had given the blows on the deceased. 16. Though the PW Nos. 3 and 4 were duly cross-examined on behalf of the defence, their evidence regarding the assault, remained unshakened. Fact remains that the deceased did not succumb to the injuries, immediately after the occurrence. He was shifted to the Hospital and he had undergone medical treatment for about 8 days till 19.8.2004, on which date the he succumbed to the injuries. 17. The Medical Officer, who performed autopsy, deposing as PW No. 7, stated that he found the following injuries: "(i) One big lacerated wound on the back of the left scapula with fracture of scapula and 2nd and 3rd coastal ribs, (ii) One blackish bruise wound on left shoulder joint and front of chest". 17. The Medical Officer, who performed autopsy, deposing as PW No. 7, stated that he found the following injuries: "(i) One big lacerated wound on the back of the left scapula with fracture of scapula and 2nd and 3rd coastal ribs, (ii) One blackish bruise wound on left shoulder joint and front of chest". The Medical Officer opined that the death was caused due to shock and hemorrhage and damage of internal vital organs of the chest, as a result of severe injury sustained by the deceased with blunt weapon. The PW 7 has exhibited the postmortem report as Ext. No. 3 and his signature therein as Ext. No. 3(1). 18. To a question put by this court, the Medical Officer opined that the injuries, sustained by the deceased, were sufficient to cause death in a normal course of nature. There is nothing on record to find that during the intervening period i.e. the date of occurrence till death of the deceased, the deceased had sustained any other injuries or met with any other occurrence etc. Therefore, the injuries sustained by the deceased, at the time of occurrence i.e. in the residence of PW 3, at the hands of the appellant were the causes of his death. Therefore, it is not difficult in understanding that the death of the deceased was a culpable homicide. 19. In view of the forceful evidence given by the eye-witnesses i.e. the PW Nos. 3 and 4 and the medical evidence aforesaid, It has been clearly established that none other than the appellant had caused the death of the deceased by inflicting the said blows. 20. The seizure of the Pira (wooden stool) from the place of occurrence, supports the prosecution version that the appellant had used the said weapon stool i.e. Pira as a weapon of assault. 21. In view of the above, considering the entire aspect of the matter, I have no hesitation in holding that the learned trial Judge rightly came to the conclusion that the appellant had caused the death of the deceased by inflicting blows with a Pira (wooden stool). Therefore, it is found that the learned trial Judge committed no error by holding the appellant guilty of the offence under Section 304 IPC. 22. As discussed above, the learned trial Judge has awarded sentence of rigorous imprisonment of 7 years and fine of Rs. 2000.00. Therefore, it is found that the learned trial Judge committed no error by holding the appellant guilty of the offence under Section 304 IPC. 22. As discussed above, the learned trial Judge has awarded sentence of rigorous imprisonment of 7 years and fine of Rs. 2000.00. As revealed from the record, on the date of recording the statement of the appellant, under Section 313 Cr.P.C., his age on 9.3.2007 was 75 years. Therefore, I find sufficient force in the contention of the learned counsel for the appellant to believe that the present age of the appellant would be 83 years. 23. From the attending facts and circumstances of this case, it appears that the appellant had no intention or pre-meditation to cause death of the deceased. Even he was not armed with any weapon of assault at the relevant time. As usual, on the date of occurrence, he visited the house of PW No. 3 along with others. The deceased, who was the brother of the appellant, also arrived there and after the arrival of the deceased, a quarrel had taken place between the appellant and the deceased. 24. As observed by the learned trail Judge, the appellant inflicted blows with a wooden stool i.e. Pira in a sudden fight and in the hit of passion upon a sudden quarrel. That apart, the occurrence took place on 12.8.2004. 25. The appellant, who is about 83 years of old, has already mentally suffered pain and injury in facing the proceeding. He was in detention, for about 75 days. Therefore, considering the fact that the appellant, who is 83 years of old, served detention, I am of the considered opinion that no fruitful purpose would be served by sending the appellant to jail at this aged of the appellant. Therefore, he deserves lenient treatment with regard to the punishment. 26. The appellant has been convicted under Section 304 Part-II IPC, the punishment provided by the said panel provision is imprisonment of either description of term, which may extend to 10 years, with fine or with panel imprisonment. 27. In view of the above discussion, I am of the considered opinion that for the ends of justice the impugned sentence of imprisonment is required to be modified to the period of detention. 27. In view of the above discussion, I am of the considered opinion that for the ends of justice the impugned sentence of imprisonment is required to be modified to the period of detention. While modifying the conviction, the sentence of rigorous imprisonment of 7 (seven) years is modified to the period already undergone by him and sentence of fine is enhanced to Rs. 5,000.00 (Rupees five thousand) and in default of payment of fine, the appellant shall suffer imprisonment for a period of three months. Out of the fine amount, if realised, an amount of Rs. 3000.00 shall be paid to the victim as compensation. 28. With the above modification and observation, this appeal is partly allowed. 29. Accordingly, the aA 30. Return the LCR.