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2016 DIGILAW 433 (GAU)

DIPEN GOGOI v. STATE OF ASSAM

2016-05-18

A.K.GOSWAMI, L.S.JAMIR

body2016
JUDGMENT : A.K. Goswami, J. Heard Mr. S.S.S. Rahman, learned counsel for the appellant. Also heard Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. 2. This appeal is preferred against the judgment dated 29.05.2015 passed by the learned Additional Sessions Judge, Jorhat in Sessions Case No.67(J-J)/2013, convicting the accused, Shri Dipen Gogoi, the appellant herein, under Section 302 IPC and sentencing him to suffer life imprisonment and to pay a fine of Rs.5,000/- (Rupees Five Thousand), in default, to undergo rigorous imprisonment for a period of 5(five) months. 3. An Ejahar (Exhibit-1) was lodged by the mother of the deceased on 01.12.2008 before the Officer-in-Charge of Bhogdoimukh Police Out Post stating that on the previous night at about 8:00 PM, a quarrel had taken place between her son, Diganta Gogoi (deceased) and his cousin, namely, Dipen Gogoi, the appellant herein, and following the quarrel, Dipen Gogoi assaulted her son, as a result of which he died on the spot. Based on the aforesaid Ejahar, Jorhat Police Station Case No.613/2008 under Section 302 IPC was registered. 4. On completion of the investigation, police submitted charge-sheet (Exhibit-4) against the appellant under Section 302 IPC. The case being exclusively triable by the Court of Sessions, the learned committal Magistrate forwarded the case to the learned Sessions Judge, Jorhat and the case on being transferred to the Court of the Additional Sessions Judge, Jorhat, for disposal, Sessions Case No.67(J-J)/2013 was registered. Charge under Section 302 IPC having been framed, was read over and explained to the accused. He pleaded not guilty and claimed to be tried. 5. During trial, prosecution examined 11(eleven) witnesses, whereas defence adduced 2(two) witnesses, taking a plea of alibi that the accused was with them at the relevant point of time when the incident had taken place. However, in his examination under Section 313 Cr.PC, the accused had not taken any such plea. In his such statement, he admitted to have surrendered before the police after the incident. However, he had taken a plea of total denial regarding the killing of the deceased. 6. The learned trial Court convicted the accused on the basis of the evidence of PW-1, PW-3 and PW-4, who are the eye witnesses of the incident. It was also held that the credibility of PW-1, PW-3 and PW-4 is strengthened by the evidence of PW-2, the village Gaonburha. 6. The learned trial Court convicted the accused on the basis of the evidence of PW-1, PW-3 and PW-4, who are the eye witnesses of the incident. It was also held that the credibility of PW-1, PW-3 and PW-4 is strengthened by the evidence of PW-2, the village Gaonburha. The learned trial Court, on the basis of the evidence on record, concluded that there was a quarrel between the accused and the deceased over a bunch of banana and during such quarrel, the accused assaulted the deceased with a bamboo log/bamboo carrier causing grievous internal injuries. The learned trial Court rejected the prosecution’s case regarding seizure of the weapon of crime as the seizure witnesses, namely, PW-6, PW-7 and PW-8, had turned hostile. However, finding was recorded that the same would in no way impact the prosecution case. 7. Mr. Rahman, learned counsel for the appellant has submitted that though PW-1 had lodged the Ejahar, in her cross-examination, she had stated that she did not know the contents of the Ejahar and, therefore, her testimony is not reliable. It is also contended by Mr. Rahman that PW-3, though stated to have suffered injuries, there is no medical evidence with regard to the same and, therefore, his presence at the place of occurrence is also doubtful. PW-4, according to Mr. Rahman, was inimical to the deceased and, therefore, his evidence cannot be relied upon for the purpose of conviction of the accused/ appellant. In substance, learned counsel submits that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and, therefore, he is entitled to acquittal. The learned counsel has also made an alternative submission to the effect that it being established on the evidence on record that a quarrel had preceded the assault, having regard to the weapon of offence and the injuries sustained by the deceased, the conviction of the appellant can be altered to one under Section 304 Part-II IPC. 8. Mr. Mazumdar, learned Additional Public Prosecutor, Assam supports the impugned judgment and contends that the evidence of PW-1, PW-3 and PW-4 had remained unimpeached and, therefore, the learned trial Court rightly passed the impugned judgment on the basis of their evidence. 8. Mr. Mazumdar, learned Additional Public Prosecutor, Assam supports the impugned judgment and contends that the evidence of PW-1, PW-3 and PW-4 had remained unimpeached and, therefore, the learned trial Court rightly passed the impugned judgment on the basis of their evidence. He has submitted that the evidence of PW-4 would go to show that even after the deceased had fallen down on the ground, the accused kept on assaulting him and, therefore, the plea of conversion of the offence to one under Section 304 Part-II IPC, as submitted by the learned counsel for the appellant, is not tenable. 9. We have considered the submissions of the learned counsel appearing for the parties and have perused the materials on record. 10. PW-1, who on the date of the deposition, recorded after 6(six) years of the incident, was aged about 80 years and thus, she was about 74 years of age at the time when the incident had taken place. She had stated that the incident occurred in front of her eyes and that the accused hit her son with a bamboo log after there was a quarrel. She also deposed that her another son, namely, Pulin Gogoi (PW-3), who had come there, was also assaulted and thereafter, she had fainted. 11. PW-2 is the Gaonburha, who is a reported witness. He stated that he had come to learn about the incident from PW-1 that the accused had killed her son. PW-3 also referred to a quarrel between the deceased and the accused and during such quarrel, suddenly, the accused had hit the deceased with a bamboo carrier (Banka) as a result of which he fell down. He noticed that the accused had hit his brother on the backside of the head. He stated that he tried to go near his brother but the accused came forward to assault him, as a result of which he could not help his deceased brother. 12. PW-4 is a retired army personnel, who stated that both the deceased and the accused, are his nephews. He stated that hearing hue and cry in the courtyard of the deceased he came out and saw the deceased lying on the ground and the accused hitting him with a bamboo carrier (Banka). PW-3 had also come out. PW-4 stated that he could not go near the deceased as his wife prevented him from going there. 13. He stated that hearing hue and cry in the courtyard of the deceased he came out and saw the deceased lying on the ground and the accused hitting him with a bamboo carrier (Banka). PW-3 had also come out. PW-4 stated that he could not go near the deceased as his wife prevented him from going there. 13. PW-5, PW-6, PW-7 and PW-8 were all declared hostile. 14. PW-9 found certain injuries at the time of performing the post-mortem examination. The relevant portion of his evidence is quoted herein below:- “Injuries:- (1) There are two abrasions on both the elbows on dorsal aspects. (2) There is a haematoma about 1” X 1” at occipital region. (3) Linear haematoma about ½” X 3” noticed on left lower chest. (4) There is rupture of spleen with haemorrhage about 2 litres at the peritoneal cavity. All the injuries are ante mortem in nature and caused by blunt object. In my opinion the cause of death is haemorrhage with shock following rupture of the spleen. Rigor mortis is found all over the body. Ext. 3 is the post-mortem report. Ext. 3(1) is my signature. Cross-examination by defence. No external injury was found on the dead body. No brain haemorrhage was found on the dead body. But haemorrhage was found on the scalp. The dead body was brought at about 2:30 p.m. and I performed post-mortem examination at 4:00 p.m.” 15. PW-10 and PW-11 are the Investigating Officers, who had conducted the investigation. 16. From the evidence on record, it is clear that the house of the deceased and the accused are adjacent to each other. Only because of the fact that PW-1 had stated that she did not know the contents of the Ejahar, the testimony of PW-1 cannot be branded as unreliable. The incident took place in the courtyard of the deceased and, therefore, presence of the mother in her own house is natural. In fact, in her cross-examination, she had stated that she was present even during the time of the quarrel. PW-2 also corroborated PW-1 by stating that PW-1 had informed him that the appellant had caused the death of her son. Though there is some contradiction when she had stated that her other son (PW-3) was also assaulted, which is not deposed to by PW-3, we think that such contradiction is not very material. PW-2 also corroborated PW-1 by stating that PW-1 had informed him that the appellant had caused the death of her son. Though there is some contradiction when she had stated that her other son (PW-3) was also assaulted, which is not deposed to by PW-3, we think that such contradiction is not very material. We have already noticed that PW-1 was almost 74 years of age and PW-3 had also indicated that he had advanced towards the deceased but could not progress further because the accused attempted to assault him also. In such a situation, the statement made by PW-1 cannot be said to be totally false as she may have thought that the assault had actually taken place. For PW-1, it was a traumatic experience to see her son being assaulted in front of her own eyes and her evidence would go to show that she also fainted thereafter. 17. In the same vein, presence of PW-3 in the place of occurrence cannot also be doubted. His categorical assertion is that the accused had hit the deceased on the backside of the head. Medical evidence also corroborates that the deceased had suffered injury on the backside of the head. His not noticing the other blows given by the deceased is not surprising given the fact that his attempt to help the deceased was foiled because the deceased also took an aggressive posture to assault him and as a result thereof, he had to retrace his steps. 18. PW-4 cannot be said to be having an inimical relationship with the deceased merely because once PW-4 had a quarrel with the deceased. His evidence is not at all shaken. PW-4, in his evidence had categorically stated that even when the deceased was lying on the ground, the accused continued to assault him. 19. In view of the aforesaid evidence of PW-1, PW-3 and PW-4, we are of the considered opinion that the learned trial Court was correct in holding that the appellant was the assailant and the deceased died due to the injuries inflicted by the appellant. It does not appear to us, going by the evidence on record, that the appellant had a premeditated mind to cause death of the deceased. It does not appear to us, going by the evidence on record, that the appellant had a premeditated mind to cause death of the deceased. That there was a prolonged quarrel between the deceased and the accused is not in dispute and during such course of quarrel, tempers ran high and in a fit of anger, the appellant had caused the injuries upon the deceased. There is no evidence on record suggesting that the accused and the deceased were at loggerheads from before and it appears to us that it was a one off incident. The appellant was not armed with dangerous weapon from before. The wooden carrier (Banka) is a common item in the village households and it appears to us that he must have picked up the Banka lying nearby and converted it to an instrument of assault. 20. The evidence of the Doctor shows that death was due to haemorrhage with shock following rupture of the spleen. No external injury was noticed on the dead body by the Doctor and there was no brain haemorrhage also. There were 2(two) abrasions on both the elbows and a haematoma at the occipital region. There is a linear haematoma on the left lower chest. Spleen is located there about such position. In view of the total injuries suffered, it does not appear to us that the appellant had taken undue advantage of the quarrel and acted in a cruel or unusual manner and we are inclined to take a view that the act committed by the accused/appellant comes within exception 4 of Section 300 IPC. 21. Consequently, we are of the opinion that the submission of Mr. Rahman that the conviction may be altered to one under Section 304 Part-II IPC merits acceptance. Accordingly, the impugned judgment is modified and the appellant is convicted under section 304 Part-II IPC. He is sentenced to suffer rigorous imprisonment for 7(seven) years with a fine of Rs.5,000/- (Rupees Five Thousand), in default, to suffer rigorous imprisonment for 3(three) months. The direction of the learned trial Court regarding the award of compensation under Section 357A Cr.PC is maintained. 22. The District Legal Services Authority, Jorhat will determine the quantum of compensation to be awarded to the family members of the victim and pay the same, if not already paid. 23. The Registry will send back the records.