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2018 DIGILAW 1593 (GAU)

Kande Kerketa v. State of Assam

2018-11-09

HITESH KUMAR SARMA, MIR ALFAZ ALI

body2018
JUDGMENT & ORDER : Hitesh Kumar Sarma, J. This is an appeal, preferred from jail, by the accused-appellants, against the judgment and order, dated 24.02.2016, passed by the learned Sessions Judge, North Lakhimpur, in Sessions Case No. 1(NL)/2013, convicting and sentencing the accused-appellants to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- each with a default clause under Sections 302/34 IPC. 1. The fact leading to the case is that, the deceased went to the house of the accused-appellants in the night of 3.10.2011. The deceased and the accused-appellant Kande Kerketa are the brothers, and, accused-appellant Manga Kerketa, is the son of accused-appellant, Kande Kerketa. The purpose of the visit of the deceased to the house of the accused-appellants was to have discussion regarding partition of their ancestral properties. During the course of discussion, as regards the partition of their ancestral properties, the accused-appellants picked up a quarrel with the deceased. At that time, accused-appellant, Manga Kerketa, caught hold of the deceased and the accused-appellant, Kande Kerketa, inflicted axe blows on the person of the deceased, resulting, ultimately, in his death. The accused-appellant Manga Kerketa also assaulted the informant/PW1, who is the wife of the deceased, with a lathi, causing injuries on her person. 2. On receipt of the FIR, on such facts, Bihpuria Station registered a case, being No. 285/2011, under Sections 302/326/34 of the IPC, investigated into it, collected evidence, and finally, submitted charge-sheet against the accused-appellants under Sections 302/323/34 IPC. 3. After exhausting all the required legal formalities, the trial court of learned Sessions Judge, Lakhimpur, framed a formal charge against the accused-appellants, under Sections 302/323/34 IPC, to which they pleaded innocence. Therefore, the trial commenced. 4. Heard learned amicus curiae for the accused-appellants, Ms A. Das as well as Mr. R.J. Baruah, learned Additional Public Prosecutor for the state respondent. 5. I have also perused the record of the learned trial court including the impugned judgment. 6. For convenience, it is proposed to look into the evidence of the Autopsy Doctor, examined as PW4, in respect of cause of death of the deceased. 7. The evidence of PW4, in respect of his findings, on post-mortem examination of the dead body of the deceased, is as follows : “Built average. Black complexion. Rigor mortis present in lower limbs mixed with mud. Abrasion all over the body. 7. The evidence of PW4, in respect of his findings, on post-mortem examination of the dead body of the deceased, is as follows : “Built average. Black complexion. Rigor mortis present in lower limbs mixed with mud. Abrasion all over the body. Penetrating fracture of frontal bone and left temporal skull. Membrame –teared off. Brain matters come through the penetrating wound of the frontal skull. Penetrating wound in the left back thigh very small in size. The M.O opined that cause of death is due to laceration of brain matters following penetrating skull bone fractures which is ate mortem in nature. The injuries were sufficient to cause death of a person in the ordinary course. He proved his report as Ext.2 and his signature thereon as Ext.2(1), signature of the Supdt. Of North Lakhimpur Civil Hospital as Ext.2(2) and the signature of the then Joint Director, Health Services, North Lakhimpur, as Ext.2(3)”. On the other hand, another doctor, examined as PW3, found the following injuries on the person of the PW1/wife of the deceased. Linear bruise right scapular region length 3.5 cm X breadth .25 cm and contusion on left scapular region of 3 cm in length. The injury was simple in nature. The opinion of PW4, in respect of the deceased is that the death of the deceased was due to injuries sustained by him which was sufficient to cause death of a person in ordinary course. In respect of PW1/injured, wife of the deceased, the PW3 opined that the injury sustained by her was simple in nature. It appears from such evidence of PW3 and PW4, respectively, that the death of the deceased was due to the injuries sustained by him which was sufficient in ordinary course to cause death of a person and the injuries sustained by his wife/PW1 are simple in nature. 8. It appears from the contents of the FIR itself, read together with the evidence of PW1/informant, that the deceased came back home after 9:00 pm, on the date of occurrence, and at about 10:00 pm he went to the house of the accused-appellants for discussion with regard to partition of their properties. According to her, the accused-appellants earlier refused partition of their properties. According to her, the accused-appellants earlier refused partition of their properties. During the discussion, in the house of the accused-appellants, both the parties picked up a quarrel, and then, the accused-appellant Manga Kerketa caught hold of the deceased and accused-appellant Kande Kerketa assaulted the deceased with an axe on his head resulting in the injuries causing his ultimate death. When she tried to save her husband/the deceased, she was also assaulted by accused-appellant, Manga Kerketa, resulting injuries on her person. 9. PW2 is the father of the PW1/informant. He was at his house at the relevant time of the occurrence. He deposed in his evidence that he was informed about the occurrence by the PW1. Then he came to the place of occurrence and found the deceased lying dead. The PW1 was also found by him in an injured state. On examination of the PW1, it is found that she has never claimed, in her evidence, that she reported about the occurrence to PW2, and as such, the evidence of PW2 that he was reported about the occurrence by PW1, receives no corroboration from the PW1, and therefore, this part of the evidence is not taken into consideration being hearsay evidence, although otherwise also this piece of evidence has no connection with the decision to be emerged, in this appeal, in the long run. 10. The evidence of PW5 is that he did not know about the occurrence and he came to the place of occurrence later on. He is the witness to the seizure of the weapons used in the offence i.e. axe and the stick, and proved Ext.3. He also exhibited the weapons of offence as Material Ext. ‘Ka’ and Material Ext. ‘Kha’ respectively. PW6 is the investigating officer and his evidence is of routine nature in respect of investigation of the case. 11. Now, it appears from the evidence on record that there is no eyewitness to the occurrence, except the PW1 i.e. wife of the deceased, who was at the place of occurrence, trying to save her husband/deceased while the fatal blow with axe was inflicted upon the deceased by the accused-appellant Kenda Kerketa. 11. Now, it appears from the evidence on record that there is no eyewitness to the occurrence, except the PW1 i.e. wife of the deceased, who was at the place of occurrence, trying to save her husband/deceased while the fatal blow with axe was inflicted upon the deceased by the accused-appellant Kenda Kerketa. Her further evidence is that before the fatal assault was inflicted on the person of the deceased by the accused-appellant Kenda Kerketa, the co-accused/appellant Manga Kerketa caught hold the deceased so as to facilitate causing of the assaults upon him by the co-accused appellant at that point of time. 12. The fact that the occurrence took place in the house of the accused-appellant after 10:00 pm on the date of occurrence. It is not expected that any independent witness would be present there. 13. I have perused the sketch-map prepared by the investigating officer in respect of the place of occurrence, vide Ext.6, wherein the place of occurrence i.e. the house of the accused-appellant is shown at ‘B’. This is the house in which both the parties resides, is an admitted position. There are 2 doors in the house under the same roof, meaning thereby, that both the parties stayed separately in the house under the same roof in different rooms. Visiting to the house of the accused-appellants by the informant and her deceased husband, at 10:00 pm, for discussion in respect of partition of their ancestral properties, makes it appear that the deceased went to the house of the accused-appellants at inappropriate time. There is no evidence to suggest that the accused-appellants were aware, at that point of time, that the deceased and his wife would visit their house for discussion in respect of partition of their properties, which suggests that they picked up a quarrel, at the relevant time, in the heat of the moment, without there being any pre-meditation from their side. There is no indication, in the evidence on record, to show even remotely, that the accused-appellants intended to cause death of the deceased although the nature of the injuries inflicted with a sharp cut weapon, like axe, is suggestive that he might have knowledge that the injuries likely to be caused with such weapon might result in death of the deceased. However, we have looked into the situation as a whole. However, we have looked into the situation as a whole. The occurrence took place in the house of the accused-appellants and there is no instance that they knew earlier that the deceased and his wife would be visiting their house. It is also not there in the evidence, on record, that they were ready with the arms used in the offence. But, it might be so, in the given situation, while the quarrel picked up between them, they readily have weapons like axe and lathi in their house and took out them to inflict the fatal injuries to the deceased and the injury to the PW1 without there being any intention of causing death. 14. On such facts as well as on the evidence discussed above, this court is of the view that the accused-appellants did not intend to cause death of the deceased, and therefore, the order of conviction recorded by the learned trial court against the accused-appellants for offence under Sections 302/34 IPC, is converted to one under Section 304 Part-II/34 IPC and sentenced them to rigorous imprisonment for 7 years each and to pay a fine of Rs. 5,000/- each for the said offence, retaining the punishment imposed upon them by the learned trial court for offence under Sections 323/34 IPC. 15. Accordingly, the accused-appellants, convicted and sentenced to undergo rigorous imprisonment for 7 years each with a fine of Rs. 5,000/- each, under Section 304 Part-II/34 IPC, retaining the punishment imposed upon them by the learned trial court for offence under Sections 323/34 IPC. 16. Accordingly, the appeal is partly allowed. 17. The period already undergone by the accused-appellants in judicial custody, during the investigation, trial, and after the judgment, shall be set off against the substantive sentence. 18. This court records its appreciation for the assistance rendered by learned Amicus Curiae. The learned Amicus-curiae be paid an amount of Rs. 7,500/- as remuneration. 19. Send down the LCR with a copy of this judgment.