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2016 DIGILAW 458 (GAU)

Juwakin Kharia v. State of Assam

2016-05-24

AJIT SINGH, SUMAN SHYAM

body2016
JUDGMENT : Ajit Singh, J. Appellant Juwakin Kharia has been convicted under Section 302 of the Indian Penal code and sentenced to imprisonment for life and fine of Rs. 3,000/- for the murder of Thomas Orang. 2. The victim Thomas Orang was cousin of the appellant. 3. According to the prosecution case, on 23.12.2012, during winter at about 6 PM, Thomas Orang and appellant were warming themselves near the fire at the latter’s residence. Suddenly, appellant dealt one blow with an axe on the back of head of Thomas Orang. Thomas Orang was carried to the hospital, where he was declared dead. An Ejahar of the incident was lodged at Police Station Pengree by Pascal Orang (PW-1), bother of Thomas Orang, on the same day, at about 11.30 a.m., wherein he named appellant as assailant of Thomas Orang. The police referred the body of Thomas Orang for post-mortem examination. The police also arrested the appellant from his house. According to post-mortem report, the cause of death of Thomas Orang was homicidal due to injury on the head. The police, after investigation, charge sheeted the appellant for an offence under section 302 of the Indian Penal Code. 4. During trial, the appellant abjured his guilt and pleaded that he has been falsely implicated. 5. The Trial Court, essentially, relying upon the evidence of Paulus Kharia (P.W.2), Anil Orang (P.W.3) and Julia Kharia (P.W.4), convicted and sentenced the appellant as aforesaid. 6. Pascal Orang (PW 1) is brother of appellant. According to Pascal Orang (PW 1), on the date of incident, Thomas Orang was warming himself near the fire in the house of appellant. After a while, he heard a commotion and was informed by Tote that the appellant had hacked Thomas Orang with an axe. Pascal Orang (PW 1) has testified that he saw Thomas Orang lying in the courtyard, from where, he took him to the garden hospital, but on way, Thomas Orang died. Pascal Orang (PW 1) has admitted in his evidence that he had lodged the Ejahar at Police Station. Paulus Kharia (PW2) is also brother of the appellant. He has testified in his examination-in-chief that he saw appellant suddenly hacking Thomas Orang on the back of his head with an axe. According to Paulus Kharia (PW 2), at the time of incident, both appellant and Thomas Orang were warming themselves in the house of former. Paulus Kharia (PW2) is also brother of the appellant. He has testified in his examination-in-chief that he saw appellant suddenly hacking Thomas Orang on the back of his head with an axe. According to Paulus Kharia (PW 2), at the time of incident, both appellant and Thomas Orang were warming themselves in the house of former. This witness, in his cross examination, has however admitted that at the time of incident, he was out of his sense, because he had consumed country made liquor and told lies before the Magistrate. He has also admitted that he could not see the quarrel. It appears that Paulus Kharia, being the brother of appellant, with this evidence, tried to save him. But, still nothing was brought out in his cross examination, from which, it can be inferred that he did not see appellant hacking Thomas Orang with an axe. The evidence of Paulus Kharia (PW 2) that he actually saw appellant hacking Thomas Orang with an axe has also been corroborated by witnesses - Anil Orang (PW 3), Juria Kharia (PW 4), who too, are brothers of appellant. According to the evidence of both Anil Orang (PW 3) and Juria Kharia (PW 4), the incident took place in the courtyard of appellant, where Thomas Orang was warming himself and suffered a head injury. These witnesses have clearly testified that they were informed by Paulus Kharia (PW 2) that it was the appellant, who had caused injury on the head of Thomas Orang with an axe. We find the evidence of Pascal Orang (PW 1), Paulus Kharia (PW 2), Anil Orang (PW 3) and Juria Kharia (PW 4) to be reliable and trustworthy, because they are brothers of appellant and have no reason to falsely implicate him. Also, the evidence of these witnesses stands fully corroborated by the post-mortem report (Exhibit- 8) prepared by Dr. Manoranjan Mahanta (PW 10). 7. In view of the evidence of witnesses - Pascal Orang (PW 1), Paulus Kharia (PW 2), Anil Orang (PW 3) and Juria Kharia PW 4, learned counsel for 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 the crime. 8. We accordingly confirm the finding of the trial court that appellant alone was the perpetrator of the crime. 8. The learned counsel for appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that appellant had the intention to murder his cousin Thomas Orang and as such, the offence will not be under Section 302 of the Indian Penal Code, but under Part I or Part II of Section 304 of the Indian penal Code. We find sufficient force in this submission. The incident took place in the courtyard of appellant’s house. At that time, both appellant and Thomas Orang were warming themselves near the fire in the evening of cold December. Thomas Orang was very closely related to appellant. For some reason, the appellant suddenly dealt a blow with an axe on the back of head of Thomas Orang. There is nothing on record to suggest that appellant had either called or brought Thomas Orang to his house with an intention to cause his death. There is no allegation that appellant attempted to cause any more injury to Thomas Orang or that there was enmity between them. 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 for 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 however affirmed. 10. With the above modification, the appeal is partly allowed.