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2018 DIGILAW 865 (GAU)

BOGAI SAIKIA v. STATE OF ASSAM

2018-05-25

AJIT SINGH, SUMAN SHYAM

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JUDGMENT AND ORDER : Ajit Singh, J. The sole appellant Bogai Saikia has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs.2000/- with default stipulation. 2. The victim of the incident was Jiban Saikia, aged 37 years. He was also the elder brother of appellant. 3. According to the prosecution case, Suren Saikia (PW-7) lived in his house at Ahom Gaon with daughters Junu Bora (PW-1) and Mousumi Saikia (PW-8). The appellant, who is younger son of Suren Saikia, also lived with them. But Jiban Saikia, elder son of Suren Saikia, lived separately in another house with his wife Makhoni Saikia (PW-3). Jiban Sakia was made to live separately because he often used to quarrel with Suren Saikia over partition of property. And it was Suren Saikia who constructed a separate house for Jiban Saikia. On 24.1.2010, at about 10 AM, Jiban Saikia, armed with an axe, came to the house of Suren Saikia and threatened the inmates with dire consequences. Seeing Jiban Saikia in such a state, Suren Saikia, Junu Bora and Mousumi Saikia ran away. Only appellant stayed back in the house. Thereafter, a quarrel took place between the appellant and Jiban Saikia. The appellant in a fit of anger, gave a fatal blow on the head of Jiban Saikia with a crowbar, due to which, he died. The First Information Report of the incident was lodged by Makhoni Saikia at Police Station Golaghat. The Station House Officer - Md. Abdus Salam (PW-9) immediately rushed to the place of occurrence and found the dead body of Jiban Saikia lying inside the house of Suren Saikia. He also seized one crowbar and one axe lying near the dead body vide Seizure Memo Exhibit 3. 4. Dr. Nilima Phukan (PW-2) conducted the post mortem examination on the dead body of Jiban Saikia. She found one lacerated wound just above the left eyebrow and one another lacerated wound over left side of the occipital region. She also found fracture on occipital bone and oozing out of brain matter. The doctor, in her post mortem examination report Exhibit 1, confirmed that Jiban Sakia died due to fatal head injury, which was caused by a blunt object. 5. The Station House Officer - Md. She also found fracture on occipital bone and oozing out of brain matter. The doctor, in her post mortem examination report Exhibit 1, confirmed that Jiban Sakia died due to fatal head injury, which was caused by a blunt object. 5. The Station House Officer - Md. Abdus Salam, after investigation, filed the charge sheet against the appellant for his trial under Section 302 of the Indian Penal Code. 6. During trial, the appellant took the plea of false implication. But the trial court believed the prosecution story and convicted him as aforesaid. 7. As seen above, all the witnesses, namely, Suren Saikia, Junu Bora and Mousumi Saikia are father and sisters of both appellant and Jiban Saikia, whereas Makhoni Saikia is widow of Jiban Saikia. None of them have deposed that they actually saw the appellant assaulting Jiban Saikia. However, from their evidence, it is clear that appellant alone had stayed back in the house, when Jiban Saikia came there with an axe and threatened the inmates with dire consequences. Then a quarrel took place between them and immediately thereafter, dead body of Jiban Saikia with injury on his head was found inside the house. Therefore, we have no hesitation in drawing presumption against the appellant that he alone caused the fatal head injury. Having regard to this factual position, the learned counsel for the appellant has also not assailed the prosecution story, which is well founded and fully proved. Accordingly, we confirm the finding of the trial court that the appellant had dealt a blow on the head of Jiban Saikia with a crowbar, which led to his death. 8. 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 Jiban Saikia 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. 9. The appellant is younger brother of Jiban Saikia, who was of quarrelsome nature and for this reason, their father, Suren Saikia had constructed a separate house for Jiban Saikia, so that, he may live peacefully. But on the fateful day, Jiban Saikia, armed with an axe, entered inside the house of Suren Saikia and threatened every one with dire consequences. The appellant is younger brother of Jiban Saikia, who was of quarrelsome nature and for this reason, their father, Suren Saikia had constructed a separate house for Jiban Saikia, so that, he may live peacefully. But on the fateful day, Jiban Saikia, armed with an axe, entered inside the house of Suren Saikia and threatened every one with dire consequences. All the inmates of the house fled, but for the appellant, whereafter a quarrel took place and in a fit of anger, the appellant dealt a fatal blow on the head of Jiban Saikia with a crowbar. The fact that Jiban Saikia had entered the house armed with an axe is also established with the seizure of axe near the dead body vide seizure memo Exhibit 3. The post mortem examination report confirmed the death of Jiban Saikia due to head injury, which was caused by blunt object. The crowbar, which was used by the appellant, was also seized near the dead body. For these reasons, we are unable to believe that appellant had any intention to cause the death of Jiban Saikia. It can, however, safely be held that he had the knowledge that by causing head injury to Jiban Saikia, the latter would die. 10. 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 rigorous imprisonment. The sentence of fine is however affirmed. The appellant is in jail and he be released on his undergoing jail sentence awarded by us. 11. With the above modification, the appeal is partly allowed.