Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 703 (GAU)

Kameswar Nath v. State of Assam

2016-08-01

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER Ajit Singh, J. The sole appellant Kameswar Nath has been convicted under Section 302 of Indian Penal Code and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation. 2. The victim of the incident was Mileswar Nath, aged about 45 years. 3. According to the prosecution case, the appellant is brother of Mileswar. They lived in the neighbourhood and their houses were adjoining to each other. On 13.4.2011 at about 9.30 PM a quarrel took place between the appellant and Mileswar over some money and in the heat of passion, the appellant came to the house of Mileswar where he beat him with a branch of guava tree. The appellant then telephonically called the ambulance. Hearing the commotion, local residents also gathered at the spot. The appellant on knowing that Mileswar has died, tried to run away but was caught by the people. He was then also tied against a betel-nut tree and handed over to the police on its arrival. Ejahar of the incident was lodged by Padmeswar nath (PW-3). He is elder brother of both appellant and Mileswar but not an eye witness to the incident. 4. Dr. A.T.M. Eusuf (PW-7) conducted the post mortem examination on the body of Mileswar. He found bruise on the frontal part of the scalp size 10cm x 6cm and bleeding from mouth and nostrils. The doctor in his post mortem examination report exhibit 5 has opined that Mileswar died due to shock, coma and profuse haemorrhage in the brain following severe head injury. 5. Mohan Nath (PW-5) is an eye witness. He lived in the neighbourhood of appellant and Mileswar. According to his evidence he heard the sound of throwing stones and bricks whereafter he rushed to the house of Mileswar. Mohan has testified that on reaching the place of occurrence he saw the appellant assaulting Mileswar with a branch of guava tree while latter was lying on the ground. According to the evidence of Mohan, he also saw the appellant calling Ambulance. Mohan has further testified that when people gathered, the appellant tried to run away but he chased and caught hold of him and then tied him against betel nut tree. Babuli Nath (PW-2) has testified that the appellant had called the Ambulance which also arrived but when it was noticed that Mileswar has already died the appellant unsuccessfully tried to run away. Babuli Nath (PW-2) has testified that the appellant had called the Ambulance which also arrived but when it was noticed that Mileswar has already died the appellant unsuccessfully tried to run away. According to the evidence of Babuli Nath, the appellant was caught by the public and handed over to the police. Parimita Devi (PW-1) is an eye witness. She is also daughter of Mileswar. She has testified that the appellant suddenly came to her house and assaulted on the head of her father Mileswar with a piece of wood. The evidence of these witnesses has been substantially corroborated by the post mortem examination report. 6. In view of the evidence of witnesses – (i) Parimita Devi (PW-1), Babuli Nath (PW-2) and Mohan Nath (PW-5), 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 the crime. 7. The learned counsel for appellant has however argued that even accepting the prosecution version in totality, the offence against the appellant would 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 on a sudden quarrel without any premeditation. As already seen above, the appellant beat Mileswar with a branch of guava tree. After beating Mileswar, the appellant did not run away and himself called the Ambulance. It is only when the appellant realized that Mileswar has died he tried to run away but was caught by the public. Also except for one injury on the head no other injury was found on the body of Mileswar. Having regard to the facts of the case, we are of the considered view that the act committed by the appellant would fall under Section 304 Part II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. 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 5 years rigorous imprisonment. 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 5 years rigorous imprisonment. The sentence of fine of Rs.10,000/- is also reduced to Rs.5000/- and in default of payment of fine the appellant shall undergo six months rigorous imprisonment. 9. With the above modification, the appeal is partly allowed.