Research › Search › Judgment

Gauhati High Court · body

2016 DIGILAW 863 (GAU)

Bipin Mura v. State of Assam

2016-09-16

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Bipin Mura has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.5000/- with default stipulation. 2. The victim of the incident was Bortolam Tigga, aged about 55 years. 3. According to the prosecution case, Bortolam was uncle of the appellant. Both of them were neighbours and their houses had a common fence. Since Bortolam had no electricity connection, his son Basil Tigga (PW-2) and daughter Bibiana Tigga (PW-3) often used to go to the house of appellant to watch television. On the night of 9.5.2008 around 9 p.m. Basil was watching television in the house of appellant. At that time, Bibiana also went there to watch television. But Bibiana instead of entering the house through a normal route crossed the fence by making a gap in it. The mother of appellant rebuked Bibiana for her this conduct. In the result, the mother of Bibiana brought her back to their house and closed the door. When appellant returned home, he came to know about the quarrel between his mother and Bibiana. He then became angry and quarreled with Basil who had stayed back in his house to watch television. Thereafter, the appellant went to the house of Bortolam and abused him filthily. In a fit of anger he also assaulted Bortolam with a wooden stick on his forehead and nose. Bortolam was immediately taken to garden hospital from where he was referred to Golaghat Civil Hospital for proper treatment. But there he succumbed to his injuries. 4. Gabriel Tigga (PW-1) made the ejahar exhibit-1 at the Numaligarh Police Out Post falling within the jurisdiction of Police Station Golaghat. On receiving the information, Liakat Ali (PW-12) rushed to the place of occurrence. He also authorized Sub Inspector Nakul Rajkhowa (PW-11) to make the inquest report on the dead body of Bortolam. The inquest report prepared by Nakul Rajkhowa is exhibit-2. 5. Dr. Dilip Deka (PW-4) conducted the post mortem examination on the dead body of Bortolam. He found abrasion over face, nose and lips; one contusion over forehead, fracture of nasal bone and frontal bone and laceration of meninges and brain matter underneath the fracture. Dr. Dilip Deka in his post mortem examination report exhibit-3 opined that Bortolam died due to injuries caused to him which were ante mortem in nature. He found abrasion over face, nose and lips; one contusion over forehead, fracture of nasal bone and frontal bone and laceration of meninges and brain matter underneath the fracture. Dr. Dilip Deka in his post mortem examination report exhibit-3 opined that Bortolam died due to injuries caused to him which were ante mortem in nature. 6. During trial, the appellant abjured his guilt and pleaded false implication. The appellant however, did not examine any witness in defence. 7. The Trial Court relying upon the evidence of eye witness Bibiana and other prosecution witnesses including Basil and Biliam Tigga (PW-8) convicted and sentenced the appellant as aforesaid. The Trial Court has also relied upon the post mortem examination report exhibit-3 prepared by Dr. Dilip Deka. 8. Admittedly, the incident took place in the house of Bortolam. Bibiana being his daughter was naturally present in the house. She has categorically deposed that on being rebuked by the mother of appellant for crossing over the fence, she had returned to her house. According to her evidence, after some time the appellant came to her house and abused the family members filthily. She further says that at that point of time Bortolam was in the courtyard and the appellant assaulted him with a wooden stick on his forehead and nose. This witness has stood firm in her cross examination and nothing has been brought out to discredit her evidence. She also emphatically denied the suggestion of appellant that she was not present on the spot at the time of incident. Her evidence is also corroborated by the evidence of Basil (PW-2). According to his evidence, mother of appellant had rebuked Bibiana for crossing over the fence by making a gap in it and that she even created a big scene. Basil has testified that after some time, the appellant arrived and quarreled with him where after, Bibiana was taken home by their mother. According to the evidence of Basil, he then heard the commotion and saw his father Bortolam lying in the courtyard. After scanning the evidence of Bibiana and Basil, we are of the considered view that they are truthful witnesses. Even the post mortem examination report of Bortolam fully corroborates the evidence of Bibiana. Basil honestly does not claim himself to be an eye witness because he was watching television and could not see the incident. 9. After scanning the evidence of Bibiana and Basil, we are of the considered view that they are truthful witnesses. Even the post mortem examination report of Bortolam fully corroborates the evidence of Bibiana. Basil honestly does not claim himself to be an eye witness because he was watching television and could not see the incident. 9. Biliam Tigga (PW-8) also lives in the same locality. He too was watching television in the house of appellant when the quarrel took place. According to his evidence, he was watching television in the house of appellant and at that time, Basil and Bibiana were also with him when the quarrel took place. This witness, however, left the house of appellant to take his meal and did not see the appellant assaulting Bortolam. He, however, supports the evidence of Basil and Bibiana to the extent that a quarrel had taken place in the house of appellant. 10. In view of the evidence of Bibiana and Basil, learned counsel for the appellant has not assailed the prosecution story that the appellant had caused the death of Bortolam, which is well founded and fully proved. We, accordingly, confirm the finding of the Trial Court that the appellant alone caused the death of Bortolam by causing injuries with a wooden stick. 11. Learned counsel for the appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that appellant had the intention to murder his uncle Bortolam 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 the appellant returned home and came to know about the quarrel between his mother and children of Bortolam. The appellant therefore became angry and in a fit of anger caused injuries to Bortolam on his forehead and nose with a wooden stick. The injuries however proved fatal and he died. 12. 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 Bortolam. It can, however, safely be held that he had the knowledge that by causing such injuries with a wooden stick on the head of Bortolam, he would die. 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 Bortolam. It can, however, safely be held that he had the knowledge that by causing such injuries with a wooden stick on the head of Bortolam, he would die. 13. Consequently, we set aside the conviction and sentence of appellant under Section 302 of the Indian Penal Code and instead convict him under Section 304, Part II of the Indian Penal Code and award a sentence of five years rigorous imprisonment. The sentence of fine is, however, affirmed, but in default of payment of fine, the appellant shall undergo six months rigorous imprisonment instead of one year as awarded by the Trial Court. 14. With the above modification, the appeal is partly allowed.