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2017 DIGILAW 370 (GAU)

Bikash Sarma S/o Sri Kora Sarma v. State of Assam

2017-03-23

PARAN KUMAR PHUKAN, UJJAL BHUYAN

body2017
JUDGMENT AND ORDER : 1. This appeal is directed against the judgment and order dated 05.12.2013 passed by the learned Sessions Judge, Golaghat in Sessions Case No. 3/2010 convicting the accused appellant under section 302 of the IPC and sentencing him to rigorous imprisonment for life and to pay fine of Rs. 2,000/- with a default clause. 2. We have heard Mr. S. Borgohain, learned counsel appearing for the appellant and Mr. M. Phukan, learned Addl. Public Prosecutor, Assam. 3. The case, in brief, as projected by the prosecution is that on 14.12.2008 at about 5 P.M. the accused appellant Bikash Sarmah dealt a lathi blow on the head of the deceased as a result of which he sustained grievous injuries and succumbed to the injuries on the next day in the Golaghat Civil Hospital. 4. FIR to that effect was lodged with the Officer-in-Charge, Bokakhat Police Station by the informant, Poly Tamuly on the basis of which Bokakhat P.S. Case No. 158/2008 was registered and on completion of investigation charge sheet was laid against the accused under section 302 IPC. 5. In order to prove the charge prosecution examined as many as ten witnesses including the formal witnesses. Two witnesses have been examined as court witness. In his defence statement under section 313 Cr.P.C. the accused appellant took the plea of total denial and no evidence has been adduced by him. 6. There is no dispute regarding the death of the deceased as a result of the injuries sustained by him. Post mortem on the dead body was conducted in the Golaghat Civil Hospital by P.W. 1, Dr. Rajiv Phukan and on examination he found the following injuries: “(1) There is presence of compound fracture on the left side of the temporal bone. (2) There is absence of continuity of the scalp membrane at the site of the fracture region on left temporal bone. (3) Brain matter came out through the fracture side of the left temporal bone. (4) Stomach – undigested food particle present. (5) Semi digested food particle present in the small intestine. (6) Fecal matter present in the large intestine. (7) Small amount of urine present in the bladder. (8) Fecal matter come out from the anus. (9) All the changes are ante mortem in nature and post mortem examination was done within 24 hours of the incident. (5) Semi digested food particle present in the small intestine. (6) Fecal matter present in the large intestine. (7) Small amount of urine present in the bladder. (8) Fecal matter come out from the anus. (9) All the changes are ante mortem in nature and post mortem examination was done within 24 hours of the incident. The head injury in S. No. (ii) is fatal in nature which may lead to death of the person. Other organs were found healthy.” 7. The doctor opined that cause of death of the deceased was due to shock and hemorrhage as a result of head injuries sustained and he proved the P.M. report Ex. 1. The doctor, however, admitted in cross-examination that the injuries might have been caused due to dashing or falling against hard substance. On examination of the dead body, he noticed that only one injury was caused by blunt object. However, there is nothing in his evidence to show that the injuries were sufficient to cause death of the deceased in the ordinary course of nature. 8. Now the pertinent question is who caused the injuries to the deceased which resulted his death. Of the ten witnesses examined by the prosecution P.W. 2, Poly Tamuly is the only eye witness to the occurrence. According to her, on the day of occurrence at about 5/5.30 P.M. the deceased was muttering something to himself for missing of his duck and thereafter, he came out of his house to go to the shop. She also followed the deceased as her house was situated nearby. At a little distance away the accused appellant suddenly dealt a blow on the head of the deceased with a bamboo stick as a result of which he fell down, but even thereafter also accused appellant trampled over his chest and though she tried to prevent him, she failed. She raised a commotion which attracted the attention of some neighbours and her sister also arrived. The deceased was initially taken to Bokakhat Civil Hospital from where he was referred to Golaghat Civil Hospital where he succumbed to the injuries on the next day. 9. P.W. 2 is the sister-in-law of the deceased and she lodged the FIR Ex. 2 on the next day. The deceased was initially taken to Bokakhat Civil Hospital from where he was referred to Golaghat Civil Hospital where he succumbed to the injuries on the next day. 9. P.W. 2 is the sister-in-law of the deceased and she lodged the FIR Ex. 2 on the next day. In the FIR, date, time and manner of commission of the crime has been clearly spelt out, including the name of the accused and we find no ground to suspect embellishment or afterthought. 10. The evidence of P.W. 2 is partly corroborated by P.W. 3, Utpal Das who arrived at the place of occurrence just after the occurrence and on arrival he saw his father, the deceased lying in injured condition. He noticed a swelling on his head. According to him, his father vomited blood when he offered water to him. He also accompanied the victim to Bokakhat Civil Hospital and thereafter, to Golaghat Civil Hospital. In cross-examination, he admitted that he had not seen the occurrence and at the relevant time he was in the house of his maternal aunt, P.W. 2. He also testified that his maternal aunt P.W. 2 arrived at the scene of occurrence and he followed her and he also noticed the accused and his father at a little distance away from the place of occurrence. 11. P.W. 5, Sri Baneswar Das, P.W. 6, Sri Jitumoni Das and P.W. 7, Sri Dharmeswar Das visited the Golaghat Civil Hospital on getting the information that the deceased was admitted in the hospital and they were present at the time of inquest on the dead body which was conducted by P.W. 4, Sri Nakul Saikia, ASI of Police in the Golaghat Civil Hospital. All of them proved the Inquest Report Ex. 2. 12. P.W. 8 Sri Mukuta Das is brother-in-law of the deceased but whatever he stated before the court is hearsay evidence which is of no assistance to the prosecution. He has not disclosed the name of the persons from whom he heard about the incident. P.W. 9 Sri Robin Malakar, who was the O/C, initially conducted investigation and he visited the place of occurrence, recorded statements of witnesses and seized the weapon of offence, prepared sketch map, and he proved the concerned documents Ex. 2, Ex. 3, Ex. 4, Ex. 5, Ex. 6 and Ex. 7. After his transfer his successor P.W. 10 Sri Prafulla Kr. 2, Ex. 3, Ex. 4, Ex. 5, Ex. 6 and Ex. 7. After his transfer his successor P.W. 10 Sri Prafulla Kr. Das filed charge-sheet Ex. 8. 13. The court also examined two witnesses as C.W. 1 and C.W. 2. C.W. 1 was the ASI of Police at the relevant time and he was present at the time of holding inquest on the dead body and it is in his evidence that the deceased sustained injuries on the back of the head and he proved his signature in the inquest report Ex. 2. C.W. 2 was also present at the time of holding inquest on the dead body and his testimony reveals that the FIR was filed after the death of the deceased. 14. In the instant case though the defence argued that P.W. 2 the eye witness to the occurrence and P.W. 3, the post-occurrence witness are close relations of the deceased and as such, implicit reliance cannot be placed in their evidence, but on an analysis of their evidence which remains mostly unshaken, we are of the firm view that their evidence cannot be eschewed even though they are relatives of the deceased. It is a settled proposition that relationship is not a ground to reject the testimony of the witnesses if they are otherwise found to be reliable and trustworthy. The Supreme Court in a catena of decisions laid down the law that the evidence of related witnesses cannot be discarded merely on the ground of relationship with the deceased. In this case although the eye witness to the occurrence P.W. 2 is the sister-in-law of the deceased, she had no reason to falsely implicate the accused in the case. She has given a consistent and uniform version regarding the occurrence and apart from minor variations and contradictions, defence could not elicit anything from her cross-examination. We do not find any reason to disbelieve her testimony. 15. As a post-occurrence witness P.W. 3 who is the son of the deceased also corroborated the testimony of P.W. 2 and even though he had not seen the accused assaulting his father, he arrived at the scene just after the occurrence and saw his father lying in injured condition and he immediately shifted him to hospital. 15. As a post-occurrence witness P.W. 3 who is the son of the deceased also corroborated the testimony of P.W. 2 and even though he had not seen the accused assaulting his father, he arrived at the scene just after the occurrence and saw his father lying in injured condition and he immediately shifted him to hospital. The occurrence took place near the house of the deceased and as such, relatives are the first persons to respond and on careful scrutiny of their evidence we do not find any inherent infirmity in their evidence. Their evidence is also corroborated by the evidence of the doctor and his unshaken evidence proved that the deceased died due to head injury sustained by him. 16. Although no explanation has been offered in the FIR and as well as in her evidence by the informant regarding delay in filing the FIR, it is not difficult to presume that she must have been busy in the treatment of her brother-in-law and after his death only she filed the FIR. 17. Mr. Borgohain, learned counsel appearing for the appellant submits that only a single blow was given on the head of the deceased that too with a bamboo stick without having any intention to cause death and as such, the conviction of the accused under Section 302 of the IPC is not sustainable. 18. In controversion, Mr. M. Phukan, learned Addl. Public Prosecutor, by referring to the judgment of the Apex Court in Kallu @ Kalyan Atmaram Patil vs. State of Maharashtra, reported in (2008) 13 SCC 438 submits that the offence committed by the appellant falls under Section 304 Part- I of the IPC as the fatal injury was caused on the vital part and intention of the accused was to cause such injury which was likely to cause death. 19. We have given our thoughtful consideration to the submissions advanced by the learned counsel for the parties and on scrutiny of the evidence of the witnesses it stands proved that the appellant has inflicted only one blow on the head of the deceased which proved to be fatal. The weapon of offence was nothing but a bamboo stick which cannot be said to be a lethal weapon. There is no evidence that the injury caused was sufficient in the ordinary course of nature to cause death. The weapon of offence was nothing but a bamboo stick which cannot be said to be a lethal weapon. There is no evidence that the injury caused was sufficient in the ordinary course of nature to cause death. The evidence of the doctor is totally silent in this regard. However, we are conscious of the fact that the single blow was given on the temporal region of the head which is a vital organ, but we are not oblivious of the fact that the dispute was over a trivial matter due to missing of a duck of the deceased and the weapon of offence was a bamboo lathi. There is nothing in the record to show that there was any pre-meditated design by the accused to commit the crime or he intended to cause death of the deceased. 20. In the case of Joseph vs. State of Kerala, reported in AIR 1994 SC 34 the Supreme Court altered the conviction of the accused from Section 302 IPC to Section 304 Part-II of the IPC holding that intention to cause injury sufficient to cause death in the ordinary course of nature has not been established. In that case also the incident took place over a trivial matter and only a bamboo stick was used for causing the injury. 21. In the case in hand also the accused only caused one injury on the head of the deceased with a bamboo stick and the dispute was over a very trivial matter. There is no evidence that the accused intended to cause the death of the deceased or to cause such bodily injury as was likely to cause death. 22. Having regard to the facts and circumstances of the case and the submissions advanced by the learned counsel appearing for both the parties and considering the totality of the evidence on record, we are of the view that the offence committed by the accused appellant in the instant case would be culpable homicide not amounting to murder. 23. We accordingly, set aside the conviction of the appellant under Section 302 IPC and instead convict him under section 304 Part-II IPC and sentenced him to rigorous imprisonment for 7 (seven) years and to pay fine of Rs. 2,000/- (Rupees two thousand), in default, to imprisonment for another 3 (three) months. The period already undergone by him shall be set off. 24. 2,000/- (Rupees two thousand), in default, to imprisonment for another 3 (three) months. The period already undergone by him shall be set off. 24. The deceased was a married man and was the only earning member of the family and as such, his family is to be adequately compensated for his unfortunate death. 25. Accordingly, we direct the Member Secretary, Assam State Legal Services Authority to provide compensation to the victim’s family as per Victims Compensation Scheme formulated in terms of Section 357 (A) of the Code of Criminal Procedure. 26. Send down the LCR forthwith.