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2016 DIGILAW 457 (GAU)

Margit Pegu @ Kamdev v. State of Assam

2016-05-24

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT : Ajit Singh, J. Appellant Margit Pegu @ Kamdev has been convicted under Section 302 of the Indian Penal code and sentenced to imprisonment for life for the murder of Uma Kanta Pegu. He has also been sentenced to fine of Rs. 10,000/-, or in default of payment of fine, to undergo one year rigorous imprisonment. 2. The appellant is cousin of victim Uma Kanta. 3. According to the prosecution case, on 6.2.2009 at about 9 a.m. Uma Kanta Pegu was sitting in the courtyard of his house. He was also holding a small baby in his lap and speaking to someone on telephone. At that point of time, the appellant suddenly appeared and stabbed on the right side of the chest of Uma Kanta with the pointed end of ‘biriya’ (a piece of split bamboo used for carrying bunches of paddy on shoulder). On sustaining injury, Uma Kanta stood up and spun in the courtyard a couple of times before falling down losing consciousness. Appellant then fled from the spot leaving the ‘biriya’ there. Uma Kanta was rushed to the hospital, where he was declared dead. The incident was witnessed by Purna Kanta Pegu (P.W.1) who immediately lodged an ejahar at Police Station Gogamukh, whereupon, police reached the spot and seized the ‘biriya’ . The police also sent the body of Uma Kanta for post mortem examination. According to the post mortem examination report (Exhibit-P/3), cause of death of Uma Kanta was shock and haemorrhage due to stab injury caused on the right side of his chest. The police after investigation chargesheeted the appellant for an offence under Section 302 of the Indian Penal Code. 4. During trial, appellant abjured his guilt and pleaded that he and Uma Kanta had a quarrel over path and at the time of incident both were grappling with ‘biriya’ when Uma Kanta accidentally sustained injury on the right side of his chest. 5. The Trial Court essentially relying upon the evidence of Purna Kanta Pegu (P.W.1) as well as the post mortem report, convicted and sentenced the appellant as aforesaid. 6. Purna Kanta Pegu (P.W.1) is an eye witness to the incident. He is also brother of Uma Kanta and cousin of appellant. According to his evidence, he saw appellant suddenly stabbing Umakanta with ‘biriya’ while the latter was sitting in his courtyard. 6. Purna Kanta Pegu (P.W.1) is an eye witness to the incident. He is also brother of Uma Kanta and cousin of appellant. According to his evidence, he saw appellant suddenly stabbing Umakanta with ‘biriya’ while the latter was sitting in his courtyard. In cross-examination, he has stated that the incident took place between Uma Kanta and appellant over some land dispute. We have carefully examined the evidence of this witness and we find no good reason to disbelieve him. Further nothing has been brought to suggest that he had any enmity with appellant to falsely implicate him. Also his evidence stands fully corroborated by the post mortem examination report proved by Dr. Binod Kumar Gogoi (P.W.4). Even the appellant during his examination as an accused has admitted that fatal injury to Uma Kanta was caused by ‘biriya’ when both of them were grappling with it over a dispute for passage. 7. In view of the evidence of Purna Kanta, learned counsel for the appellant has not assailed the prosecution story which is well founded and fully proved. We accordingly confirm the finding of the Trial Court that appellant alone was the perpetrator of crime. 8. Learned counsel for the appellant has, however, argued that even accepting the prosecution version in totality, offence against appellant would not be under Section 302 of the Indian Penal Code but under Part-I or II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. As seen above, appellant is cousin of Uma Kanta and ‘Biriya’ is normally not used as weapon. ‘Biriya’ in fact is a long split bamboo stick which is used for carrying paddy by the farmers on shoulder. And even according to the evidence of Purna Kanta, grappling took place between Uma Kanta and appellant after a sudden quarrel over a passage. There is no allegation that appellant attempted to cause any further injury to Uma Kanta. 9. Having regard to these facts, we are of the considered view that the act committed by appellant would fall under Section 304, Part-I of the Indian Penal code and not under Section 302 of the Indian Penal code. There is no allegation that appellant attempted to cause any further injury to Uma Kanta. 9. Having regard to these facts, we are of the considered view that the act committed by appellant would fall under Section 304, Part-I of the Indian Penal code and not under Section 302 of the Indian Penal code. Consequently, we set aside the conviction of appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him thereunder and instead convict him under Section 304, Part-I of the Indian Penal code and award a sentence of eight years Rigorous Imprisonment. The sentence of fine is also reduced to Rs. 1000/- and, in default, three months Rigorous Imprisonment. 10. With the above modification, the appeal is partly allowed.