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2016 DIGILAW 1156 (GAU)

Bukan Gogoi @ Tankeswar Gogoi v. State of Assam

2016-12-21

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Bukan Gogoi @ Tankeswar Gogoi has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation. 2. The victims of the incident were Bolen Gogoi and Gobin Gogoi – both aged about 45 years. 3. According to the prosecution case, on 27.11.2009, Bolen and Gobin were informed that the appellant had killed their goat sometime in the afternoon. Around 7.30 p.m. on the same day, they went to the dwelling house of appellant to lodge their protest. The dwelling house is situated on a land where he had cultivated vegetables. And, in the dwelling house, the appellant killed both Bolen and Gobin by striking them on their heads with an iron rod. Ejahar exhibit 3 of the incident was made by Kushal Gogoi (PW-2) at Bokakhat Police Station, District Golaghat. Soon after the incident, the appellant also surrendered at Police Station Bokakhat along with one iron rod and bamboo stick. Sub-Inspector Durlav Medhi (PW-9) along with Executive Magistrate reached the spot and prepared inquest reports of the dead bodies of Bolen and Gobin which were lying there. The bodies were then sent for post mortem examination. 4. Dr. Dilip Chandra Deka (PW-1) conducted the post mortem examination on the dead body of Bolen. He found one lacerated injury over the scalp extending from the vault of scalp to the occipital region of head - size 5”x3”x1”. The doctor also found fracture of left parietal bone and occipital bone. According to doctor, the injuries were ante mortem in nature and caused by blunt weapon. His post mortem examination report is exhibit 2. Dr. Dilip Chandra Deka also conducted the post mortem examination on the dead body of Gobin. He found one lacerated injury over the back of the scalp extending from above the left pina upto the mid of occipital region - size 5”x 2”x 1”. The doctor also found fracture of occipital bone and left temporal bone. He in his post mortem examination report exhibit 1 has opined that Gobin died due to head injury which was ante mortem in nature and caused by blunt weapon. 5. During investigation, Investigating Officer - Durlav Medhi referred the appellant before the Magistrate for recording his confession. The doctor also found fracture of occipital bone and left temporal bone. He in his post mortem examination report exhibit 1 has opined that Gobin died due to head injury which was ante mortem in nature and caused by blunt weapon. 5. During investigation, Investigating Officer - Durlav Medhi referred the appellant before the Magistrate for recording his confession. And Rahul Medhi (PW-10) who was Judicial Magistrate 1st Class, Golaghat recorded the confessional statement exhibit 15 of appellant under Section 164 of the Code of Criminal Procedure. The appellant while being examined as an accused under Section 313 of the Code of Criminal Procedure did not deny his making a confessional statement before the Judicial Magistrate. 6. There is no eye witness to the incident and the trial court mainly relying upon the above mentioned confessional statement of appellant convicted and sentenced him as aforesaid. 7. The learned counsel for the appellant has not challenged the finding of the trial court that appellant caused the deaths of Bolen and Gobin by striking them on their heads with a blunt weapon. His only contention is that even accepting the prosecution version in totality, offence under Section 302 of the Indian Penal Code is not made out and the appellant at the best can be punished only for an offence under Part I or Part II of Section 304 of the Indian Penal Code. According to the learned counsel, the case at hand is not of pre-meditated murder as the incident took place on the spur of moment and there was sudden and grave provocation by Bolen and Gobin which resulted in infliction of injuries on their heads. The learned counsel has submitted that the case would be covered under Exception 1 to Section 300 of the Indian Penal Code. The learned Additional Public Prosecutor, on the other hand, defended the conviction and sentence of the appellant, as passed by the trial court. 8. To determine whether the conviction of the appellant under Section 302 of the Indian Penal Code is legal and proper, we deem it appropriate to examine the confessional statement exhibit 15 of appellant which reads as under:- “Around 10:00 a.m. on 27.11.2009, I went to Lakhimi Gaonlia Bank at Bokakhat Town. Since my purpose was not served and I felt hungry, I returned home. I saw that a goat had entered my vegetable garden. Since my purpose was not served and I felt hungry, I returned home. I saw that a goat had entered my vegetable garden. I threw a stone to that goat that hurt one of its legs. Petuwa, the son of Balen Gogoi entered my compound by kicking open my gate. At that time, I was sleeping by closing the door. Petuwa broke open my door by kicking it. Then, we fumed at each other. About that time, one Sri Bhairab Das came there and disengaged Petuwa. At that time, Petuwa had a lathi in his hand. Then, Petuwa left my house along with Bhairab and I entered inside the house. Thereafter, around 7:30 p.m., after putting the potatoes for boiling, I was playing flute. Then, Bolen and Gobin Gogoi came to my house in drunken state and knowing that I was at home, they entered my house by breaking open the door of my house. Then, I offered them stools to sit. But instead of sitting on the stool, Gobin grabbed me from behind while Bolen Gogoi began to hit me on my head with a stick. Gobin hit me on my arms and thigh from behind. Then, in order to save my life, I hit Bolen Gogoi. Then, Bolen Gogoi overthrew my cauldron by hurling the stool. Then, snatching away the stick from Bolen’s hand, I hit him on his head with it as a result of which Balen fell down on the iron rod kept in my house and sustained injury. Thereafter, I struck Gobin on his head and he fell down sustaining the injury. Then, I went to the Police Station along with an iron rod. That’s all I have to say only.” 9. A bare reading of the above quoted confessional statement reveals that on the date of incident around 10 a.m., the appellant had injured the goat of Bolen and Gobin by throwing a stone because the goat had entered his vegetable garden. And this led to a quarrel between the appellant and son Petuwa of Bolen. Thereafter, around 7.30 p.m., the appellant was playing flute in his own house after putting the potatoes to boil. He was also unarmed. At that point of time, both Bolen and Gobin in a drunken state forcibly entered into his house by breaking open the door. Even then the appellant offered them stools to sit. Thereafter, around 7.30 p.m., the appellant was playing flute in his own house after putting the potatoes to boil. He was also unarmed. At that point of time, both Bolen and Gobin in a drunken state forcibly entered into his house by breaking open the door. Even then the appellant offered them stools to sit. But Gobin grabbed the appellant from behind, while Bolen dealt a blow on his head with a stick. Thereafter, Gobin also hit the appellant on his arms and thigh from behind. The appellant then in order to save himself hit Bolen. In the quarrel Bolen overthrew the cauldron of appellant by hurling the stool. The appellant then snatched the stick from Bolen’s hand and hit him on his head. As a result of which, he fell down on the iron rod. Thereafter, the appellant struck Gobin also on his head due to which he fell down. The head injuries caused to both Bolen and Gobin proved fatal due to which they died on the spot. Their bodies were found in the dwelling house of appellant. The post mortem examination reports of Bolin and Gobin confirm that they died due to head injuries caused by blunt object. These facts fully corroborate the confessional statement of appellant. Therefore, in the fact situation of the case, provocation caused to the appellant must be held to be both grave and sudden and the present case is apparently covered by Exception 1 to Section 300 of the Indian Penal Code. 10. In the result, the appeal is partly allowed. The conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment are set aside. Instead, he is convicted under Section 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for ten years. The sentence of fine is however affirmed.