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2016 DIGILAW 902 (GAU)

Shyam Mura v. State of Assam

2016-09-30

AJIT SINGH, N.CHAUDHURY

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Shyam Mura 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 incident was Prem Mura, aged about 50 years. 3. The prosecution case proved against the appellant is that he and his father Prem Mura often used to quarrel after consuming liquor. On 17.5.2013 at about 8.30 p.m., both of them again quarreled in the courtyard of their house over some issue. The appellant in a heat of passion pushed Prem Mura as a result of which he fell down. The appellant then picked up a firewood and dealt 2-3 blows on the body of Prem Mura. Bharen Basumatary (PW-4) and Purnabala Mandal (PW-7) are neighbours of the appellant. On hearing the hue and cry, they came out from their respective houses and saw the appellant assaulting Prem Mura with a firewood. Someone even called the Ambulance in which Prem Mura was carried to hospital for treatment. The appellant and his mother Chenimai Mura (PW-1) also accompanied him in the Ambulance. Prem Mura however succumbed to head injury on 19.5.2013 during his treatment in the Guwahati Medical College & Hospital. Chenimai Mura therefore made ejahar exhibit 5 against the appellant at Police Station Uluoni, District Nagaon. 4. Chenimai Mura in her ejahar has specifically named the appellant as assailant of Prem Mura. Although she says that she was present in the house at the time of incident, she could not actually see the appellant assaulting Prem Mura. But Bharen Basumatary and Purnabala Mandal have stood firm in their evidence. They have testified that appellant had a quarrel with Prem Mura whereafter he assaulted him with a firewood. Nothing has been brought out in the cross examination of these witnesses to discredit their evidence. Admittedly, they were neighbours. They, therefore, on hearing the hue and cry, must have come out from their houses and saw the appellant assaulting Prem Mura with a firewood. Their evidence is also fully corroborated by the post mortem examination report exhibit 2 prepared by Dr. Amarjeet Patowary (PW-8). 5. In view of the evidence of Bharen Basumatary and Purnabala Mandal and Chenimai Mura, learned counsel for the appellant has not assailed the prosecution story, which is wellfounded and fully proved. Their evidence is also fully corroborated by the post mortem examination report exhibit 2 prepared by Dr. Amarjeet Patowary (PW-8). 5. In view of the evidence of Bharen Basumatary and Purnabala Mandal and Chenimai Mura, learned counsel for the appellant has not assailed the prosecution story, which is wellfounded 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 appellant has, however, argued that even accepting the prosecution version in totality, it cannot be said that appellant had the intention to murder his father Prem Mura 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 appellant on a sudden quarrel without any pre-meditation. As already mentioned above, both appellant and Prem Mura often used to quarrel after consuming liquor. And while quarrelling without pre-meditation, in a sudden fight in the heat of passion, the appellant assaulted Prem Mura with a firewood without taking undue advantage or acted in a cruel or unusual manner. After the incident the appellant did not run away. Instead he accompanied Prem Mura and his mother Chenimai Mura in the Ambulance for his treatment. Prem Mura died after two days in the hospital. The post mortem examination report exhibit 3 reveals that total five injuries were found. Out of them, two were on the leg and one on the shoulder. One injury was also over right cheek and the fatal injury was on the head. But even then, no fracture was found on the skull. There was however sub-dural haemorrhage. 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 Prem Mura. It can, however, be safely held that he had the knowledge that by causing injuries to Prem Mura with a firewood, the latter would die. 7. 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 Prem Mura. It can, however, be safely held that he had the knowledge that by causing injuries to Prem Mura with a firewood, 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 thereunder 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 of Rs. 10,000/- is also reduced to Rs.1000/- and in default of payment of fine, to undergo one month rigorous imprisonment. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us. With the above modification, the appeal is partly allowed.