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2016 DIGILAW 626 (GAU)

Ganesh Nag v. State of Assam

2016-07-14

AJIT SINGH, SUMAN SHYAM

body2016
ORDER : Ajit Singh, J. Appellant Ganesh Nag has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5,000/- with default stipulation for committing the murder of his mother Kunti Nag. The appellant has also been convicted under Section 307 of the Indian Penal Code for attempting to commit the murder of his father Hari Charan Nag (PW 1) and sentenced to rigorous imprisonment for two years and fine of Rs.2000/- with default stipulation. Both the jail sentences have been ordered to run concurrently. 2. According to the prosecution case, Kunti was wife of Hari Charan. Appellant and Manish (PW 2) are their sons, whereas Rani Nag (PW 4) is their daughter. All of them lived together. Appellant and Manish helped Hari Charan in running the Hotel business by sitting in the Hotel. The appellant, however, became alcoholic and often used to misbehave with the customers coming to the Hotel. This act of appellant was not approved by Manish as it was adversely affecting the Hotel business. A day, prior to the date of incident, Manish had pushed the appellant, as a result of which, he sustained an injury on his forehead. The appellant then lodged the police report whereafter he was treated by a doctor. To avoid further quarrel between the appellant and Manish, Hari Charan persuaded the appellant to stay in the house of his sister Anita Nag (PW 3). Anita lived separately at some distance from the house of Hari Charan. But, later Anita came to Hari Charan and stated that appellant was in a drunken stage and there is possibility of his creating nuisance in her house and therefore, someone should be sent. Hari Charan, in turn, asked Kunti to stay in the house of Anita so that the appellant may be kept under control. Kunti obediently went to the house of Anita to spend her night there and prevent the appellant from creating nuisance. But, on the early hours of following morning i.e. 8.5.2010, the appellant picked up an axe and proceeded towards his house for assaulting Hari Charan and Manish. Seeing this Kunti intervened and managed to snatch the axe from appellant. She reasoned out to the appellant that it was not proper on his part for behaving in such a manner during auspicious hours of early morning. Seeing this Kunti intervened and managed to snatch the axe from appellant. She reasoned out to the appellant that it was not proper on his part for behaving in such a manner during auspicious hours of early morning. The appellant instead forcibly took back the axe from Kunti and struck on her head from the blunt side of that axe. This incident was also witnessed by Anita. The appellant, who was in a heat of passion, then, walked upto his house and dealt a blow with the same axe on Hari Charan, while he was sleeping. But, because of the mosquito net, which was fastened with the bed, the axe blow could not reach Hari Charan. Rani, who was present in the house, somehow managed to snatch the axe from the appellant. The appellant then ran away. At that point of time, one person came and informed Hari Charan that some incident had taken place in the house of Anita. Hari Charan, therefore, rushed to the house of Anita, where he found Kunti lying dead with head injuries. Anita narrated that appellant had caused the death of Kunti. Shocked by the incident, Hari Charan lodged the ejahar (Exhibit 2) at Moriani Police Station wherein he categorically named appellant as the assailant. The police came to the place of occurrence and seized the axe. 3. Dr. Debojit Gogoi (PW 15) conducted the post mortem on the dead body of Kunti. According to the post mortem examination report (Exhibit-10) prepared by him, he found three lacerated wounds with fracture on skull bone of Kunti. Dr. Debojit Gogoi opined that the death of Kunti resulted due to head injuries which were caused by blunt object. 4. The Trial Court relying essentially on the evidence of Hari Charan (PW 1), Anita Nag (PW 3) and Rani Nag (PW 4) convicted and sentenced the appellant as aforesaid. The Trial Court also relied upon the post mortem examination report as well as the Forensic Science Laboratory Report (Exhibit 6) of the seized axe and chadar worn by deceased Kunti. 5. Anita is an eye witness to the first incident in which the appellant caused the death of Kunti by giving axe blow on her head from the blunt side of axe. 5. Anita is an eye witness to the first incident in which the appellant caused the death of Kunti by giving axe blow on her head from the blunt side of axe. Although, in her examination in chief, Anita did not say that she actually saw the appellant causing injury with an axe to Kunti, she however on her being declared hostile, admitted having given the statement to police that she had seen the appellant causing injuries. It appears that Anita, because of compulsion of her relation, was hesitant in testifying against the appellant. But, the fact remains that dead body of Kunti was found in her house, who had stayed there to control the appellant from causing any untoward incident. Also it cannot be lost sight that immediately after causing injuries to Kunti, the appellant went to the house of his father Hari Charan armed with the same axe and attempted to cause injury to him, while he was sleeping, but could not succeed in doing so because of the mosquito net, which covered the bed. Rani has deposed that she had snatched the axe from the appellant after he tried to cause injury to Hari Charan. As already seen above, Hari Charan and Rani are father and sister of the appellant, whereas Anita is his maternal Aunt and nothing has been brought out in their evidence to show why they would falsely implicate him. The evidence of Anita that appellant had caused the head injuries to Kunti from the blunt side of the axe is also corroborated by the post mortem examination report (Exhibit -10). 6. In view of the evidence of Anita, Hari Charan and Rani, learned counsel for the appellant has not assailed the prosecution story that the appellant had caused the death of Kunti Devi which is a well founded and fully proved. We accordingly confirm the finding of the trial court that appellant alone caused the death of Kunti by causing head injuries with an axe. 7. Learned counsel for the appellant has however argued that even accepting the prosecution version in totality, it cannot be said that the appellant had any intention to murder his mother Kunti 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 suddenly when Kunti intervened to prevent the appellant from going to their house for causing injury either to Manish or Hari Charan with an axe. The axe was also snatched by Kunti, but it was forcibly taken back by the appellant whereafter to ensure that Kunti may not further stop, appellant dealt a blow on her head from the blunt side of axe. But the blow proved fatal and she died. Had the appellant any intention to kill Kunti, he would have dealt blow to her from the sharp side of axe. It can however be safely inferred that he had the knowledge that by giving a blow or two on the head of Kunti, the latter would die. 8. 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 thereunder and instead convict him under Section 304 Part II of the Indian Penal Code and award a sentence of 8 years rigorous imprisonment. The sentence of fine is however affirmed. 9. As regards conviction of the appellant under Section 307 of the Indian Penal Code for attempting to commit the murder of Hari Charan, we find no reliable evidence on record. Admittedly, no injury was caused to Hari Charan. At the time of incident, Hari Charan was sleeping on a bed, which was covered with a mosquito net. The appellant could not have possibly committed the murder of Hari Charan in such a situation. There is no allegation that appellant first tried to remove the mosquito net and then gave the alleged blow. The possibility of appellant’s intention to cause simple injury or to give beating cannot be ruled out. We accordingly set aside the conviction and sentence awarded to the appellant under Section 307 of the Indian Penal Code. 10. With the above modifications, the appeal is partly allowed.