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2016 DIGILAW 720 (GAU)

Thaneswar Hazarika 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 Thaneswar Hazarika 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 Phanidhar Hazarika, aged about 50 years. He was also the elder brother of appellant. 3. According to the prosecution case, appellant and Phanidhar often used to quarrel over property dispute. On 6.2.2007, at about 6 PM, when Phanidhar returned home, the appellant suddenly went there with a lathi and dealt a blow with it on his head. The incident was witnessed by Lily Hazarika (PW-2), wife of Phanidhar. After receiving the blow on the head, Phanidhar fell down. He was then taken to the Golaghat Civil Hospital, where he died on 8.2.2007. Ejahar of the incident exhibit 1 was lodged by Papul Hazarika (PW-1). He is brother of appellant and Phanidhar. The police reached the place of occurrence and arrested the appellant on 7.2.2007. The police also seized one lathi vide exhibit 3 from the appellant. 4. Dr. Rajiv Phukan (PW-4) conducted the post mortem examination on the dead body of Phanidhar. He found one depressed fracture on the right side of the temporal bone area from where brain matter came out through the fractured site. The doctor in his post mortem examination report exhibit 4 has opined that Phanidhar died due to head injury. 5. During the trial, the appellant abjured his guilt and pleaded false implication. 6. The trial court mainly relying upon the evidence of Lily Hazarika as well as the post mortem examination report convicted and sentenced the appellant as aforesaid. 7. Lily Hazarika is wife of Phanidhar. The incident took place in their house. Lily Hazarika was therefore naturally present in the house, when the incident took place. She has categorically testified that in the evening when Phanidhar returned home, the appellant suddenly came with a lathi and dealt a blow on his head with it. According to the evidence of Lily Hazarika, after receiving the blow, Phanidhar fell down. Lily Hazarika has testified that on the next morning, Phanidhar was taken to Golaghat Civil Hospital, where he died. Lily has also testified that she had informed about the incident to Papul Hazarika (PW-1), who lodged the ejahar on her instruction. According to the evidence of Lily Hazarika, after receiving the blow, Phanidhar fell down. Lily Hazarika has testified that on the next morning, Phanidhar was taken to Golaghat Civil Hospital, where he died. Lily has also testified that she had informed about the incident to Papul Hazarika (PW-1), who lodged the ejahar on her instruction. On examining the evidence of Lily Hazarika, we have no hesitation in holding that she is reliable and truthful witness. Her evidence also stands substantially corroborated by the post mortem examination report which confirmed that Phanidhar died due to head injury. 8. Bihuram Hazarika (PW-3) is neighbour of Phanidhar. He has testified that Phanidhar and appellant often used to quarrel over property dispute. According to his evidence, although he did not actually see the incident, he heard that appellant had killed Phanidhar. 9. As mentioned above, Papul Hazarika is brother of Phanidhar. Although, he is not an eye witness to the incident, he admits to have lodged the ejahar. According to the evidence of Papul Hazarika, when he returned home after paying the social visit, he heard that appellant had killed his elder brother Phanidhar. 10. In view of the evidence of witness Lily Hazarika, 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. 11. 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 Phanidhar 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 Phanidhar. Even, according to the prosecution case, the appellant and Phanidhar often used to quarrel over property dispute. Therefore, it appears that the appellant, in a fit of anger, went to the house of Phanidhar and dealt a solitary blow on his head with a lathi. It is to be seen that nothing prevented the appellant from giving more such blows to Phanidhar. Phanidhar though after receiving the blow fell down, he was taken to hospital on the next day. It is to be seen that nothing prevented the appellant from giving more such blows to Phanidhar. Phanidhar though after receiving the blow fell down, he was taken to hospital on the next day. He however died after two days in the hospital. 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 Phanidhar. It can, however, be safely held that he had the knowledge that by causing head injury to Phanidhar with a lathi, the latter would die. 12. 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 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. 13. With the above modification, the appeal is partly allowed.