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2016 DIGILAW 1167 (GAU)

AMAR KUMAR HAZARIKA v. STATE OF ASSAM

2016-12-22

AJIT SINGH, MANOJIT BHUYAN

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JUDGMENT : Manojit Bhuyan, J. The sole appellant Amar Kumar Hazarika @ Majubhai has been convicted under Section 302 of the Indian Penal Code for causing death of Rajib Bora and sentenced to undergo imprisonment for life with fine and default stipulations. 2. According to the prosecution case, on 26.10.2011, at about 8 P.M. the appellant voluntarily caused hurt on the head of Rajib Bora by means of a heavy substance causing serious injuries. Rajib was taken to Golaghat Civil Hospital in 108 Ambulance and he succumbed to injury on the very next day i.e. 27.10.2011 at around 7.30 A.M. 3. Ejahar (Ext-2) in the case was lodged by Sri Jogendra Nath Saikia (PW-2) before the Dergaon Police Station on 27.10.2011 stating that on 26.10.2011 at about 8 P.M. his grandson Rajib Bora had gone to village Hanhpani and on reaching the road near the house of one Umesh Gogoi, the appellant dealt blow on the head of his grandson with heavy object causing grievous injury. Although the injured person was immediately taken to the hospital by 108 Ambulance, he succumbed to the injuries the following morning at about 7.30 A.M. On the basis of the said ejahar, which was registered as Dergaon Police Station Case No.252/2011 under Section 302 IPC, Hem Kanta Nath (PW-10) was entrusted with the investigation of the case. The appellant was apprehended, post mortem examination was performed on the dead body, necessary memos were drawn and statements of witnesses were recorded. Upon completion of investigation, Charge Sheet was submitted against the appellant under Section 302 IPC. The case was committed to trial. 4. On behalf of the prosecution, as many as 10(ten) witnesses were examined including the Medical Officer and the Investigating Officer. Two persons were examined as Court Witnesses and the statement of the appellant was also recorded under Section 313 CrPC. 5. Pabitra Gogoi (PW-3) presented himself as the sole eye witness to the incident. In his deposition before the Court he stated that about 7 P.M. of last 'Diwali' he was coming home on foot after purchasing rice from the shop of one Sarat Gogoi. The deceased Rajib Bora was walking ahead of him. There was another shop owned by Tolan Gogoi (PW-4) where the appellant was waiting. In his deposition before the Court he stated that about 7 P.M. of last 'Diwali' he was coming home on foot after purchasing rice from the shop of one Sarat Gogoi. The deceased Rajib Bora was walking ahead of him. There was another shop owned by Tolan Gogoi (PW-4) where the appellant was waiting. The deceased Rajib Bora, who was riding a bicycle, was asked to stop by the appellant and thereafter the appellant dealt a blow on the backside of the head of Rajib Bora with his hand. As a result, Rajib Bora fell down from the bicycle and when PW-3 raised hue and cry, the appellant fled from the scene. A large number of people gathered at the place of occurrence, the Police was informed over phone and an ambulance was called, which had taken Rajib Bora to Golaghat Civil Hospital. 6. Testing the veracity of the testimony of Pabitra Gogoi (PW-3) made before the Court, the same is consistent with the earlier statement that he had made under Sections 161 and 164 CrPC. There is no dispute to the fact that the appellant had assaulted Rajib Bora on the date and time of the incident. What remains to be looked into is the means for causing the injury and/or weapon of offence as, according to the medical evidence, death was caused to Rajib Bora as a result of heavy injuries by blunt force impact. Apparently, no weapon was seized or recovered connecting the same to the head injury sustained by the deceased. 7. In the deposition of Hem Kanta Nath (PW-10), he was entrusted with the investigation of the case. On the basis of the ejahar dated 27.10.2011 he along with the Officer in-charge had gone to the place of occurrence at village Hanhpani. The people gathered there had told them that if the police did not arrest the appellant, the public would set fire to the house of the appellant. In his deposition he also stated that he found nothing to seize although he was informed that assault on Rajib Bora was made with a heavy object. 8. Having regard to the evidence brought on record by Pabitra Gogoi (PW-3), the involvement of the appellant in doing the act resulting in the death of Rajib Bora stands without any doubt. In his deposition he also stated that he found nothing to seize although he was informed that assault on Rajib Bora was made with a heavy object. 8. Having regard to the evidence brought on record by Pabitra Gogoi (PW-3), the involvement of the appellant in doing the act resulting in the death of Rajib Bora stands without any doubt. The question for consideration is whether the prosecution has been able to prove beyond all reasonable doubt that the appellant caused the death of Rajib Bora with the requisite intention described in Section 299 of the Indian Penal Code. This burden never shifts and always rest on the prosecution. In the instant case, the testimony of Pabitra Gogoi (PW-3) is to the extent that the appellant dealt blow on the backside of the head of Rajib Bora with his hand, as a result of which, Rajib Bora fell down from the bicycle. The materials on record do not mention of any blunt weapon of having been employed in the crime. In other words, the injuries sustained by Rajib Bora finds no connection with any blunt weapon. 9. Even on a close perusal of the materials on record, it nowhere shows or suggests that the act done by the appellant was with the intention to cause death although he may have had the knowledge that the act so done was likely to cause death. In the fact situation of the case, it cannot be held that the appellant had acted with the intention of causing death of Rajib Bora. 10. This is a case where the appellant could not have been convicted under Section 302 of the IPC and sentenced to life imprisonment. Having held thus, the appeal stands partly allowed by setting aside the conviction of the appellant under Section 302 and sentence thereof. Instead, he is convicted under Section 304 Part-II of the IPC and sentenced to undergo imprisonment for 5(five) years. The sentence of fine is however affirmed.