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2015 DIGILAW 77 (GAU)

Ashit Dey @ Deb v. State of Assam

2015-01-28

B.K.SHARMA

body2015
JUDGMENT AND ORDER (ORAL) 1. This appeal is directed against the judgment of conviction dated 29.12.2005 passed by the learned Ad-Hoc Additional Sessions Judge, Kamrup, Guwahati in Sessions Case No.148(K)/2005. By the said judgment, the accused/appellant has been convicted u/s 304 (Part-II) IPC with the sentence of 07(seven) years rigorous imprisonment. When the appeal was filed, an application registered as Misc Case No.459/2006 was also filed praying for suspension of the sentence. However, the same was rejected vide order dated 30.06.2006. Thus, the petitioner is in jail ever since he was convicted vide the impugned judgment dated 29.12.2005. The sentence being rigorous imprisonment for 07(seven) years, the same is already over and the accused/appellant must have been released. 2. Although the appeal was filed through the engaged counsel, but when there was no appearance, Mr. B.N. Gogoi, learned counsel was appointed as Amicus Curie vide order dated 05.05.2014. He is also absent in today’s proceeding. In such circumstances, Mr. S. C. Biswas, learned counsel has come forwarded to assist the Court. He has gone through the records and has made submissions. According to him, since there was a quarrel between the accused/appellant and the victim, there is possibility of exercise of right of private defence and thus the conviction of the accused/appellant was not warranted. 3. Countering the said argument, Mr. D. Das, learned Additional Public Prosecutor, Assam on the other hand submits although quarrel might have taken place, but the same did not cloth the accused/appellant with the right to kill the victim. He submits that the learned trial Court considering the circumstances rightly convicted the accused/appellant u/s 304 (Part-II) IPC. 4. The prosecution story in brief is that on 04.02.2002 at about 2.00 P.M, one Ratan Biswas, elder brother of the informant Kumaresh Biswas went to the house of a neighbour Sri Pranay Dey, where the accused Ashit Dey, younger brother of said Pranay Dey kicked him and also gave blows on his persons resulting in his death. Accordingly, an FIR was lodged with Jalukbari Police Outpost under Jalukbari Police Station which was registered as Jalukbari P.S. Case No.33/2002 u/s 302 IPC and after completion of investigation police submitted charge sheet against the accused/appellant u/s 302 IPC. 5. During trial, prosecution examined 08(eight) witnesses and the accused/appellant was also examined u/s 313 Cr.P.C. Defence case was total denial. 6. 5. During trial, prosecution examined 08(eight) witnesses and the accused/appellant was also examined u/s 313 Cr.P.C. Defence case was total denial. 6. PW-1 is the first informant, who in his deposition narrated the incident. He in his deposition stated that on the day of occurrence, there was beating and counter beating between the accused/appellant and the deceased. Be it stated here that the deceased was under the influence of liquor. When he reached to the place of occurrence, he found his brother lying dead. He came to know that the accused/appellant fled away from the place of occurrence and surrendered in a nearby CRPF camp. 7. PW-2 also stated in her deposition that she heard hue and cry at the house of Pranab and then came out of her house. She found assault and counter assault between the accused and the deceased. However, she asked him to go home, but they did not pay any heed to her advice. Sometime thereafter, the accused/appellant kicked the deceased and he fell down. On raising hue and cry, people gathered. However, in the meantime, the deceased died and the accused/appellant fled away and took shelter in a CRPF camp. 8. PW-3 in her deposition also stated about the quarrel that took place between the accused/appellant and the deceased. Like that of Pw-2, she also asked them to go home, but pushing and counter pushing continued between the two. Afterwards, she came to know that the accused/appellant had surrendered at CRPF camp. 9. PW-4 also stated about the quarrel between the accused/appellant and the deceased. He saw the victim in the courtyard of the house of Pranab and accused standing nearby. He gave water to the victim, after which he died. Accused fled away from the place of occurrence and entered the CRPF camp. 10. PW-5 also stated in her deposition as to how the accused/appellant after causing the crime, left the place of occurrence. PW-6 saw the victim lying and when she touched his hands and legs, found him unconscious. The accused was present by the side of the deceased, but thereafter fled away. She came to know from the people gathered there that the accused fled away after murdering the deceased. 11. PW-6 saw the victim lying and when she touched his hands and legs, found him unconscious. The accused was present by the side of the deceased, but thereafter fled away. She came to know from the people gathered there that the accused fled away after murdering the deceased. 11. PW-7 is the Investigating Officer, who in his deposition stated that he had received a phone call, who was not willing to identify himself, furnishing the information that the accused/appellant had murdered the deceased. Accordingly, GD entry No.61 dated 04.02.2002 on the basis of the said information was made. He came to the place of occurrence and saw the dead body. He carried out the required formalities. In the meantime, Officer-in-Charge, Jalukbari Police Station registered Jalukbari P.S Case No.33/2002. 12. PW-8 is the doctor, who in his deposition stated that Dr. Pratap Ch Sarma, former Professor and Head of Department of Forensic Medicine, GMCH was known to him. On 05.02.2002, the dead body of the deceased was brought to GMCH. He in his deposition referred to the injuries and opinion as follows:- “INJURIES: (I) Abrasion of 2 cm x 1cm size, 1 cm below the lateral canthus of right eye; (II) Abrasion of 4 cm x 1cm size on right elbow joint, 1 cm below the elecranon process of ulna. (III) Contusion of 2cm x 1cm size just above the right clavicle (mid clavicular region) 3cm lateral to the midline; (IV) Contusion of 8cm x 6cm size over the right side of the chest in between 3rd to 4th intercostals space; (V) Contusion of 6cm x 4cm size over the left temporal region. Neck: No ligature mark found. On dissection, nect muscled found healthy. Thorax: Wall as described. Ribs: Fracture of 4th rib right side in mid clavicuclar line. Cartilage healthy. Pleura congested. Larynx and thorax congestd. Lungs: Both lungs congested. Oedematous. Visceral surface of the lower lobe has a contusion of 4cm x 2cm size: weight of the lung was 550 gm. Pericardium healthy. Heart found enlarged- weight 450 gm. All the chambers of the heart contain fluidly blood: vessels healthy. Abdomen: Wall healthy. Peritoneum healthy. Mouth, pharynx, oesophagus : healthy. Stomach healthy and empty. Small intestine contains digested food particles and healthy. Large intestine healthy. Opinion: Death was due to shock, resulting from pulmonary oedema developed following ante-mortem injuries which was caused by blunt forced impacts. Approx. All the chambers of the heart contain fluidly blood: vessels healthy. Abdomen: Wall healthy. Peritoneum healthy. Mouth, pharynx, oesophagus : healthy. Stomach healthy and empty. Small intestine contains digested food particles and healthy. Large intestine healthy. Opinion: Death was due to shock, resulting from pulmonary oedema developed following ante-mortem injuries which was caused by blunt forced impacts. Approx. time since death: 12-24 hours.” 13. The learned trial Court on the basis of the aforesaid evidence held that there was nothing to show about existence of any previous enmity between the accused and the victim. As the evidence could suggest, the offence committed by the accused/appellant was not exercising the right of self defence. As noted above, it is in the evidence that the victim used to consume liquor and on the day of incident also he was under influence of liquor. As the evidence of PW-8 could suggest, the victim sustained number of injuries on his person as a result of the incident. 14. On the basis of the aforesaid evidence, what has established is that although the accused/appellant did not cause death of the deceased with intention of causing death, but there is nothing to discard the evidence on record that the victim died of the injuries perpetrated on him by the accused/appellant. It was known to the accused/appellant that the victim was under influence of liquor and so not in a position to defend himself. It has rightly been observed by the learned trial Court that the accused by his act, caused the death of the victim without, however, with the intention of causing his death, but with the knowledge that by such act, he was likely to cause his death or to cause such bodily injury as was likely to cause his death bringing the case u/s 304 (Part-II) IPC. Above being the position, I see no reason to interfere with the impugned judgment of conviction. 15. Mr. S.C. Biswas, learned counsel, however, submits that the sentence imposed on the accused/appellant is on the higher side. On this Mr. D. Das, learned Additional Public Prosecutor, submits that apart from the fact that the learned trial Court rightly exercised the discretion regarding imposition of sentence, the accused/appellant has already undergone the period of sentence. 16. In view of the above, I do not find any merit in this appeal and accordingly stands dismissed. 17. On this Mr. D. Das, learned Additional Public Prosecutor, submits that apart from the fact that the learned trial Court rightly exercised the discretion regarding imposition of sentence, the accused/appellant has already undergone the period of sentence. 16. In view of the above, I do not find any merit in this appeal and accordingly stands dismissed. 17. Before parting with the case record, I place on record my words of appreciation for Mr. S.C. Biswas, who readily agreed to assist the Court. 18. Registry shall send down the LCR along with a copy of this judgment.