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2016 DIGILAW 610 (GAU)

Hareswar Gogoi v. State of Assam

2016-07-12

AJIT SINGH, SUMAN SHYAM

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JUDGMENT : Ajit Singh, J. Appellant Hareswar Gogoi has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation for committing the murder of his brother Rajen Gogoi @ Rajendra Gogoi. 2. The case of prosecution is that appellant and Rajen were brothers, but their relations were strained. Both appellant and Rajen, however, lived in the same locality, but they were not on visiting and talking terms. On 24.8.2013, at about 10.30 PM, Rajen went to the house of appellant and started abusing filthily. He then exhorted the appellant not to hide behind his wife and come out or else he would break open the door and cut him. This conduct of Rajen infuriated the appellant so much that he suddenly caused injuries to Rajen with a dao (sharp edge weapon). Rajen, on being injured, fell down at the front door of appellant and died. Brother Amal Gogoi of appellant and Rajen lodged a written ejahar (Exhibit P2) at the Police Station Dergaon. Dr. Rabin Tamuly (PW-1) conducted the postmortem examination on the dead body of Rajen. He found ante mortem bone deep cut on left frontal region of scalp. He also found incised wound extending from left maxillary region to middle of upper lip with broken of upper incisor and canine teeth and one horizontal incised wound on right mid leg. Dr. Rabin Tamuly, in his postmortem examination report (Exhibit 1), opined that the cause of death was shock and hemorrhage due to head injury. 3. During trial, most of the witnesses did not support the prosecution case and denied having seen the incident. But from the evidence of Ranu Gogoi (PW-3), wife of appellant, it is established that appellant had caused injuries to Rajen with a dao, when the latter came to their house in the late night and started abusing filthily. No explanation has also been given by Ranu Gogoi, why the dead body of Rajen was found lying in front of the house of appellant. The evidence of Ranu Gogoi is reliable and trustworthy. Her evidence also stands corroborated by the post mortem examination report (Exhibit 1) prepared by Dr. Rabin Tamuly. 4. In view of the evidence of witness – Ranu Gogoi, learned counsel for the appellant has not assailed the prosecution story, which is well-founded and fully proved. The evidence of Ranu Gogoi is reliable and trustworthy. Her evidence also stands corroborated by the post mortem examination report (Exhibit 1) prepared by Dr. Rabin Tamuly. 4. In view of the evidence of witness – Ranu Gogoi, learned counsel for the appellant has not assailed the prosecution story, which is well-founded and fully proved. Accordingly, we confirm the finding of the trial court that appellant alone was the perpetrator of the crime. 5. Learned counsel for the appellant has, however, argued that even accepting the prosecution case in totality, it cannot be said that appellant had the intention to murder his brother Rajen 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 house of appellant on a sudden quarrel without any pre-meditation, when in the late night, Rajen came and started abusing him filthily. As already mentioned above, it has also come in the cross examination of Ranu Gogoi that Rajen had exhorted the appellant to come out or he would cut him and not to hide behind his wife. In this part of the country, dao is kept commonly in every house for cutting bamboo. The appellant, on being exhorted and abused filthily, at the odd hours of night, lost his control and in a heat of passion, dealt blows with dao to Rajen. One such blow landed on the head of Rajen, which proved fatal and resulted into his death. Having regard to the circumstances, in which the incident took place, particularly the act of appellant, we are unable to believe that he had any intention to cause the death of Rajen. It can, however, be safely held that he had the knowledge that by causing injuries to Rajen with a dao, the latter would die. 6. Consequently, we set aside the conviction of the appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him and instead, convict him under Section 304 Part II of the Indian Penal Code and award a sentence of 7 years rigorous imprisonment. The sentence of fine is however affirmed. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. 7. The sentence of fine is however affirmed. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. 7. With the above modification, the appeal is partly allowed.