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2016 DIGILAW 718 (GAU)

Hemanta Gogoi v. State of Assam

2016-08-03

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER (Ajit Singh, C.J.) The sole appellant Hemanta Gogoi 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. 2. The victim of the incident was Probin Tassa, aged about 40 years. 3. The appellant used to sell liquor in front of the house of Probin Tassa. On 15.10.2010, sometime in the evening, Probin objected the appellant from selling liquor in front of his house. This enraged the appellant and he, in a fit of anger, dealt one blow with a wine bottle on the head of Probin. The incident was witnessed by Anjana Tassa (PW-2), wife of Probin, as it took place in her courtyard. Ejahar Exhibit 4 of the incident was lodged on 26.10.2010 at Nitai Pukhuri Outpost of Police Station Demow, District Sivasagar by Anjana. Probin was first given treatment in Demow C.H.C. Hospital by Dr. Sunanta Changmai (PW-4) from where, he was shifted to Assam Medical College, Dibrugarh. Probin, however, died on 25.10.2010, during his treatment in the Medical College. 4. Dr. Hemanta Kumar Mahanta (PW-8), in his post mortem examination report, dated 26.10.2010 Exhibit 2, opined that Probin died due to head injury caused by blunt impact. 5. During the trial, the appellant abjured his guilt and pleaded false implication. 6. The trial court, relying upon the evidence of Anjana as well as medical reports, convicted and sentenced the appellant as aforesaid. 7. Anjana Tassa has testified that she saw the appellant giving one blow with a wine bottle on the head of Probin due to which he fell down. In the ejahar, Anjana stated that the appellant dealt one blow with a wine bottle because Probin objected him from setting up a Wine Shop in front of their house. Anjana stood firm in her evidence. Nothing has been brought out in the cross examination of this witness to discredit her evidence. Her evidence also stands substantially corroborated by the post mortem examination report, which confirmed that Probin died due to head injury caused by blunt impact. 8. In view of the evidence of Anjana, 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. 9. 8. In view of the evidence of Anjana, 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. 9. Learned counsel for the appellant has, however, argued that even accepting the prosecution story in totality, it cannot be said that appellant had the intention to murder Probin 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 on a sudden quarrel without any premeditation, when Probin objected the appellant from running a Wine Shop in front of his house. The appellant in a fit of anger gave one blow with a wine bottle on the head of Probin, which proved fatal and resulted into his death after 10 days. Having regard to the circumstances in which the incident took place, particularly, the act of the appellant, we are unable to believe that he had any intention to cause the death of Probin. It can, however, be safely held that he had the knowledge that by causing such injury to Probin with a wine bottle, the latter would die. 10. 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 5 (five) 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. 11. With the above modification, the appeal is partly allowed.