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2016 DIGILAW 964 (GAU)

Apurba Dutta alias Chattu Dutta v. State of Assam

2016-11-01

AJIT SINGH, N.CHAUDHURY

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JUDGMENT & ORDER : N. Chaudhury, J. By preferring this appeal under section 374 of the Code of Criminal Procedure, the petitioner has challenged the judgment and order dated 12.03.2012 passed by learned Additional Sessions Judge, Bongaigaon in Sessions Case No. 73 (BGN)/2008 whereby he has been convicted under section 448/302 of the IPC and sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for 2 months more. 2. The prosecution story is that one Jamuna Ghosh, as informant, lodged and ejahar with Officer In-charge of North Bongaigaon outpost of Bongaigaon Police Station informing that one Chattu Dutta along with three other unidentified persons came to her house and asked to open the door. As she opened the door, the accused Chattu Dutta asked her as to what would she do if the house rent is not paid. He and other three persons then entered the house and dealt a punch to the elder brother of her husband. Upon receipt of this ejahar, the North Bongaigaon outpost registered G.D. Entry No. 491 dated 22.11.2006 and forwarded the same to the Officer In-charge, Bongaigaon Police Station whereupon Bongaigaon Police Station Case No. 451/2006 under sections 448/325/34 of the IPC was registered. Subsequently, when the victim Adhir Ghosh died, section 302 of the IPC was also added. 3. Police after investigation of the case submitted charge sheet against the accused Apurba Dutta alias Chattu Dutta and three other persons, namely, Jagadish Ray, Kanak Ray and Pabitra Sarma. The case was committed to Sessions by order dated 22.10.2008 passed by learned Chief Judicial Magistrate, Bongaigaon and thereupon aforesaid Sessions Case No. 73 (BGN)/2008 was registered. The learned Additional Sessions Judge framed charges under section 448/34 and 302/34 of the IPC against all the four accused persons. The accused persons pleaded not guilty and claimed to be tried. 4. In course of trial, prosecution examined as many as 7 witnesses. PW 1, Smt. Jamuna Ghosh is the complainant. She stated that on the intervening night of 20.11.2006 and 21.11.2006 at about 12.30 A.M., Chattu Dutta aggressively came to their residence and questioned as to why house rent was asked for. He was accompanied by three others and all of them assaulted Adhir Ghosh, the elder brother of her husband. Chattu Dutta dealt blow by means of a piece of wood. He was accompanied by three others and all of them assaulted Adhir Ghosh, the elder brother of her husband. Chattu Dutta dealt blow by means of a piece of wood. All the accused persons thereafter fled away. 5. PW 2, Sri Bipul Ghosh, is the husband of PW 1. He supported the statements of his wife and deposed that all the accused persons conjointly applied fist blow on his elder brother Adhir Ghosh. Accused Chatu struck him with a piece of timber on the back side of his head at the court-yard and then fled away. The ejahar was lodged on the following day at about 9 A.M. by his wife. The victim was taken to Bongaigaon Civil Hospital where he was kept for one night as an indoor patient and on the next day he was released. About a week thereafter Adhir Ghosh died. 6. PW 3, Dr. Bhupen Baishya, held post mortem over the dead body on 26.11.2006 at 2 P.M. He found a small swelling on the occipital region of the victim. In the brain, clotted blood haemorrhage was seen in internal capsule. In his opinion, death was due to cerebro-vascular accident. In course of cross examination he disclosed that cardio-vascular accident is a stroke and it takes place due to rupture of blood vessels in the brain. 7. PW 4, Sri Gautam Ghosh, is another brother of the deceased. According to him, at around 12 O’clock on 20.11.2006 accused Apurba Dutta called them whereupon he along with Bipul Ghosh, Adhir Ghosh and Jamuna Ghosh got up. They found accused Apurba with three other boys at their veranda. There was a quarrel between both sides at their veranda with regard to house rent of their house. All these persons dealt blow on the back side of the head of Adhir Ghosh and injured him thereby. Adhir fell down on the courtyard and thereafter all the accused persons fled away. The victim was taken to Bongaigaon Civil Hospital on the following morning when doctor told that he could be cured. He was then taken back to house where he died after 2/3 days. 8. PW 5, Smti. Pakhila Das and PW 6, Sri Kajal Saha have not witnessed the incident. They disclosed as to what they had come to know from the other witnesses subsequently and so depositions of these two witnesses are not material. 9. He was then taken back to house where he died after 2/3 days. 8. PW 5, Smti. Pakhila Das and PW 6, Sri Kajal Saha have not witnessed the incident. They disclosed as to what they had come to know from the other witnesses subsequently and so depositions of these two witnesses are not material. 9. PW 7, Sri Chakradhar Roy is the Investigating Officer in the case. He had held the inquest of the dead body which, however, was not exhibited. He proved Exhibit 3 charge sheet and Exhibit 2, post mortem report. The learned Additional Sessions Judge thereafter examined the accused persons under section 313 of the Code of Criminal Procedure when they denied the correctness of the evidence collected. Relying upon the aforesaid evidence adduced by the prosecution, the learned Additional Sessions Judge passed the impugned judgment and order holding that accused Apurba Dutta alias Chattu Dutta guilty of committing offence under section 448/302 of the IPC but acquitted the other three accused persons. This judgment and order has been called in question in the present appeal. 10. We have heard Ms. SK Nargis, learned counsel for the appellant and Mr. PP Baruah, learned Additional Public Prosecutor. We have also perused the lower court records including the post mortem report and the depositions. 11. There are altogether three eye witnesses in this case who gave vivid description of the incident. There is no doubt that the accused Apurba Dutta alias Chattu Dutta is the son of the tenant of informant. The informant had made a demand for payment of house rent during the day for which the accused along with three others woke up the informant and other inmates of the house at around 12/12.30 at night. The evidence on record shows that the dispute was in regard to payment of house rent. In course of altercation, the accused dealt a blow on the head of Adhir Ghosh, the eldest member of the family and he fell down. It came out from the evidence of the PWs 1, 2 and 3 that accused Apurba Dutta alias Chattu Dutta dealt a blow with a piece of timber on the back side of the head of the victim. The victim was not taken to hospital immediately. It came out from the evidence of the PWs 1, 2 and 3 that accused Apurba Dutta alias Chattu Dutta dealt a blow with a piece of timber on the back side of the head of the victim. The victim was not taken to hospital immediately. On the following morning he was taken to hospital and was released from there after one night and he died at home after 3/4 days. Now the question is whether death was due to the assault made by the accused. The PW 3, Medical Officer, found a small swelling at the occipital region of the deceased. This corroborates ocular evidence that there was a blow on the back side of the head of the victim resulting in the injury. The skull was found healthy and normal and there was no fracture. The assault made by the accused, therefore, was not of that severe nature so as to cause instantaneous death of the victim. In course of altercation during the odd hours at night, accused must have lost his balance and dealt a blow and having seen that the victim has fallen down on the ground, he fled away. It is indicative of the fact that the accused did not intend to kill the victim. The evidence of the PW 3 goes to show that there was a cardio-vascular accident owing to rupture of the artery. Adhir Ghosh died 3/4 days after the incident at his house at the age about 65 years. Had he so intended, the impact would have been much more and could have caused a grievous injury. That is not the case here. The victim subsequently died of cardio vascular accident. In course of cross examination, the PW 3 has clarified that it was a stroke caused due to rupture of artery. Due to the stroke there was haemorrhage in internal capsule of the skull. However, no question was put to the PW 3 by defence seeking further clarification as to whether such rupture of artery could be owing to the injury at the occipital region of the victim. Fact remains that assault by the accused Chattu Dutta at the occipital region of the victim has been proved beyond reasonable doubt. It is also established that the victim died after 3/4 days at home due to cerebro-vascular accident. 12. Fact remains that assault by the accused Chattu Dutta at the occipital region of the victim has been proved beyond reasonable doubt. It is also established that the victim died after 3/4 days at home due to cerebro-vascular accident. 12. Considering all these factors it cannot be said that accused had dealt blow at the back side of the head of the victim with a piece of timber with intention to kill him or knowing that such assault can be a cause for death. But on the basis of the materials available on record, it cannot be said that the case in hand falls within the category of offence under section 302 of the IPC. The conviction under section 302 of the IPC, therefore, is hereby set aside by modifying it into a conviction under section 304 Part-II of the IPC. Consequently, the sentence of rigorous imprisonment for life is also modified to rigorous imprisonment for 5 years. However, the sentence of fine is not interfered with. 13. The appeal stands partly allowed. 14. Send down the lower court records.