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2016 DIGILAW 890 (GAU)

Harilal Boro v. State of Assam

2016-09-27

AJIT SINGH, N.CHAUDHURY

body2016
JUDGMENT AND ORDER : Ajit Singh, J. Since no one appeared for the appellant who is in jail, we appointed Ms. Ishta Terangpi as Amicus Curiae and she gracefully agreed. 2. The sole appellant Harilal Boro has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.1,000/- with default stipulation. 3. The victim of incident was Dhepela Boro, aged about 38 years. He was elder brother of the appellant. 4. The prosecution case that has been proved against the appellant is that on 2.5.2006 around 12 O’clock, both he and deceased Dhepela picked up a quarrel over betel nut. And without premeditation in a fit of anger upon a sudden quarrel, the appellant dealt one blow on the head of Dhepela with a solid bamboo piece. Unfortunately, the head injury resulted into the death of Dhepela on the spot. The appellant did not flee and stood near the body of Dhepela. The appellant in fact himself carried the dead body on a handcart to the police station where First Information Report was recorded. On post-mortem examination, only one head injury was found on the dead body. The appellant even made an extra-judicial confession of causing injury to Dhepela before Purnima Boro (PW-1) and Ananta Kumar Boro (PW-2). 5. Learned counsel for the appellant, having regard to the ample evidence against 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. 6. 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 elder brother Dhepela 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. As seen above, even according to the prosecution case, the incident took place on a sudden quarrel without any pre-meditation over betel nut. In this part of the country, bamboo is kept by every villager. And the appellant in a sudden fight in the heat of passion dealt one blow on the head of Dhepela with a solid bamboo piece. As seen above, even according to the prosecution case, the incident took place on a sudden quarrel without any pre-meditation over betel nut. In this part of the country, bamboo is kept by every villager. And the appellant in a sudden fight in the heat of passion dealt one blow on the head of Dhepela with a solid bamboo piece. There is nothing on record to show that appellant had taken any undue advantage and acted in a cruel or unusual manner. He did not even run away from the spot and had pushed the handcart for carrying the dead body to the police station after the unfortunate incident. Having regard to the circumstances in which the incident took place, we are unable to believe that he had any intention to cause the death of Dhepela. It can, however, be safely held that he had the knowledge that by causing head injury to Dhepela with solid bamboo piece, the latter would die. 7. 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 6 months 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. 8. With the above modification, the appeal is partly allowed.