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2019 DIGILAW 1188 (GAU)

Jagya Barua v. State of Assam

2019-11-05

MIR ALFAZ ALI, NANI TAGIA

body2019
JUDGMENT : 1. Heard Mr. A. Tiwari, learned Amicus Curiae, appearing for the appellant and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam for the State. 2. This appeal is directed against the judgment and order dated 21.03.2018, passed by the learned Sessions Judge, Darrang, Mangaldoi in Sessions Case No. 07(DM) of 2014. By the said judgment and order, the learned Sessions Judge, convicted the accused-appellant under Section 302 of the IPC and sentenced him to suffer imprisonment for life and a fine of Rs. 5,000/- with default stipulation. 3. As per prosecution case, on 10.08.2010, at about 5.00 p.m. an altercation took place between the husband of the informant (victim) and the appellant on some domestic issues and in course of the altercation, the accused fetched a dao from his house with an intention to kill the victim and dealt various blows on his head, chest and arms and thereby caused grievous injuries to the victim. Immediately, thereafter, the victim was taken to the Mongaldoi Civil Hospital, wherefrom he was again shifted to Gauhati Medical College and Hospital, where, he succumbed to the injuries. The FIR was lodged by PW-2, Panchami Deka, on the basis of which, the police registered Dhula P.S. Case No. 256 of 2012 under Section 302 IPC and commenced investigation. 4. During the course of investigation, police examined the witnesses under Section 161 of the Cr.P.C. the inquest report was prepared by the S.I. Pranab Choudhury and the post-mortem examination was conducted by Dr. R. Chaliha (PW-9). On conclusion of investigation, police laid charge sheet against the present appellant under Section 302 IPC and eventually the appellant stood trial before the Court of Sessions for the offence of murder under Section 302 IPC. 5. In course of the trial, charge was framed under Section 302 IPC against the appellant, which was abjured by him. In order to bring home the charge, the prosecution examined as many as 11 (eleven) witnesses and after completion of the prosecution evidence, the accused was examined under Section 313 of the Cr.P.C. The appellant took the plea of innocence and examined 4 (four) witnesses including himself in his defence. 6. PW-9, the doctor (Dr. R. Chaliha) who conducted the post-mortem examination on the body of the victim found the following injuries:- "Injury No. 1 - A stitched wound over the right temporal region 3 cm in length with two stitches. 6. PW-9, the doctor (Dr. R. Chaliha) who conducted the post-mortem examination on the body of the victim found the following injuries:- "Injury No. 1 - A stitched wound over the right temporal region 3 cm in length with two stitches. Injury No. 2 - An incised wound extending from the right temporal region to the volt of the scull, cm in length and cutting bone and brain. Injury No. 3 - A stitched would extending from the left forehead to the volt of the scalp 10 cm in length with six stitches cutting the bone and brain. Injury No. 4 - A stitched wound over the right deltoid muscle 6 cm in length with four stitches. Injury No. 5 - A stitch wound over the right upper chest 4 cm in length with three stitches. Injury No. 6 - A stitch wound over the dorsum of the right hand 7 cm in length with 5 stitches cutting the first metacarpal bone. In the thorax.......Membranes are cut, sub arachnoid and sub-dural hemorrhage present. Brain cut intra cerebral hemorrhage is present." 7. In the opinion of the doctor, death was caused due to combine effects of coma, shock and hemorrhage, as a result of the injuries sustained by the victim. The injuries were ante-mortem caused by heavy sharp cutting weapons and homicidal in nature. The death was stated to be within 12 to 24 hours from the time of examination. During the cross-examination, the doctor stated, that heavy sharp cutting weapon is commonly referred to the dao. It was further stated by the doctor, that the nature of injury suggests that the victim was standing when the injury was caused. 8. PW-3, Lakhima Deka, who was an eye witness of the occurrence deposed that while she was going with her father to bring the cows from the grazing field, the accused Jagya Baruah came there and attacked her father with a dao. Consequently, her father sustained injuries on his head, hands and chest. She raised alarm, hearing which, Arabinda Deka (PW-4), Kulen Deka (PW-6), Uttam Deka (PW-8A) and Sewali Deka arrived at the place of occurrence and all of them shifted the victim to the hospital for treatment by an ambulance. 9. Consequently, her father sustained injuries on his head, hands and chest. She raised alarm, hearing which, Arabinda Deka (PW-4), Kulen Deka (PW-6), Uttam Deka (PW-8A) and Sewali Deka arrived at the place of occurrence and all of them shifted the victim to the hospital for treatment by an ambulance. 9. PW-4, Arabinda Deka stated that hearing alarm raised by PW-3, Lakhima Deka, he came to the place of occurrence and had seen, that the accused Jagya Barua was giving blows to the victim with a dao and having seen him, the accused ran away from the place of occurrence. 10. PW-5, Hitesh Deka was the witness to the seizure list (Ext.2), by which the police seized the dao. However, during cross-examination, this witness stated that, the relationship between the accused Jagya Barua and Prafulla Deka was strained because of alleged illicit relation between the accused Jagya Barua and wife of the brother of Prafulla Deka. 11. According to PW-6, Kulen Deka, an altercation took place between the accused and the deceased and after that altercation, the accused Jagya Barua assaulted Prafulla Deka with a dao. Hearing hue and cry, he came to the place of occurrence and found the appellant with a dao in his hand and Prafulla Deka was lying on the road. Therefore, according to PW-6, he did not see the assault. However, he had seen the appellant at the place of occurrence with a dao in his hand, which obviously supported to the testimony of the PW-3 and PW-4. 12. PW-8(A), Uttam Deka stated that the victim Prafulla Deka having sustained the injury fell on the road and the accused Jagya Barua entered into his house, which was nearby. 13. The PW-1, Gauri Das, the scribe of the FIR stated, in her cross-examination, that on the previous evening, another FIR was written by her on the request of one Hem Deka, wherein it was alleged that the victim Prafulla Deka assaulted the accused Jagya Barua. 14. From the oral testimony of the PW-2 it is evident that she did not have the opportunity to see the occurrence. However, she admitted in cross-examination that the accused also sustained injury in the same occurrence. 15. 14. From the oral testimony of the PW-2 it is evident that she did not have the opportunity to see the occurrence. However, she admitted in cross-examination that the accused also sustained injury in the same occurrence. 15. The accused, Jagya Barua examining himself as DW-1 testified that Prafulla Deka (victim) and Arabina Deka (PW-4) assaulted him alleging that he had illicit relationship with the wife of Arabinda Deka, for which an FIR was lodged and he was also taken to the hospital by Hemo Deka for treatment. He however denied the prosecution case of the victim being assaulted by him. 16. The DW-2, Hareswari Deka, stated that there was an altercation between Prafulla Deka and the accused Jagya Barua on the issue of illicit relationship of the accused with the wife of Arabinda Deka and Prafulla Deka assaulted Jagya Barua causing injuries. Having received the injuries, Jagya Barua left the place of occurrence. She also stated that, thereafter the family members of Prafulla Deka also set fire to the house of the appellant, Jagya Barua. 17. DW-3, Dr. Chandra Prasad Payeng deposed that he examined the victim Jagya Barua at about 10.20 p.m. on 11.08.2008 and found four laceration over his head, which according to the doctor was caused by sharp cutting object as well as blunt object. 18. DW-4, Sadananda Baruah also stated that he had seen the scuffle between Jagya Barua and Prafulla Deka and in course of the scuffle Prfulla Deka hit Jagya Barua and consequently he fell on the ground. Thereafter, Jagya Barua gave several blows with a dao to Prafulla Deka, causing severe injuries and on seeing this incident, he left the place of occurrence. 19. Having appreciated the above evidence, the learned Sessions Judge, convicted the appellant under Section 302 of the IPC and awarded the sentence, as indicated hereinabove. 20. The findings of the learned Sessions Judge that homicidal death of the victim was caused due to injuries inflicted by the appellant has not been seriously contested by the learned Amicus Curiae. 19. Having appreciated the above evidence, the learned Sessions Judge, convicted the appellant under Section 302 of the IPC and awarded the sentence, as indicated hereinabove. 20. The findings of the learned Sessions Judge that homicidal death of the victim was caused due to injuries inflicted by the appellant has not been seriously contested by the learned Amicus Curiae. However, the learned Amicus Curiae contended that the victim Prafulla Deka initially assaulted the appellant bringing false allegation against him that he had illicit relationship with the wife of his brother, whereupon the scuffle started between both of them and in course of such mutual fight between the two, the appellant inflicted the injury on sudden provocation and therefore, there was no intention on the part of the appellant to cause death of the victim. The learned Amicus Curiae further contended that at best, the appellant could have been convicting under Section 304 Pt-II of the IPC and not under Section 302 of the IPC for a murder. 21. On our assessment of the evidence and materials brought on record as indicated above, the submissions made by the learned Amicus Curiae appears to be pre-ponderous. The death of the victim has not been in dispute, however, a specific plea has been taken by the accused, that there was quarrel between the accused and the victim and in course of the quarrel the occurrence took place. It was stated in the FIR that an altercation took place between Prafulla Deka and the accused Jagya Baruah on some domestic issue and in course of the altercation, the accused brought a dao from his house and inflicted the injury to the victim. Such averment made in the FIR also corroborated the defence version, as deposed by the DW-4, that he had seen the scuffle between the accused Jagya Baruah and Prafulla Deka and in course of such scuffle, Prafulla Deka hit accused Jagya Baruah, and thereafter Jagya Baruah dealt several blows to the victim Prafulla Deka by "dao" (common knife used for domestic purpose). 22. The factum of the accused having sustained injury in the occurrence has also been corroborated by the oral testimony of PW-1, the informant. 22. The factum of the accused having sustained injury in the occurrence has also been corroborated by the oral testimony of PW-1, the informant. PW-5 (Hitesh Deka) also stated in his evidence that the relationship between the accused Jagya Barua and Prafulla Deka was strained on the issue of illicit relationship of Jagya Baruah with the wife of the brother of Prafulla Deka. What is therefore, evident from the oral testimonies adduced by both the prosecution and defence side is that initially a quarrel took place between the accused and Prafulla Deka and Prafulla Deka also assaulted the accused with a "lathi" and in course of such quarrel and mutual fight, Jagya Baruah brought a dao from his house and assaulted the victim. Thus, the above facts that there was a quarrel and mutual fight between the parties and in course of such mutual fight, the accused appellant brought a dao from his house and inflicted injuries to the victim at the heat of passion without any meditation, in our considered opinion, brings the present case within the sweep of exception 4 to Section 300 of the IPC. Therefore, the conviction and sentence of the appellant under Section 302 of the IPC cannot be maintained. Accordingly, we set aside the conviction and sentence of the appellant under Section 302 IPC instead, convict him under Section 304 Part-I of the IPC. 23. Having modified the conviction from Section 302 to 304 Part-I IPC, we sentence the appellant to undergo rigorous imprisonment for 8 (eight) years. We, however, do not interfere with the sentence of fine and the default imprisonment awarded by the learned trial court. We also do not interfere with the judgment with regard to compensation awarded under Section 357-A by the learned trial court. The appeal is partly allowed. 24. Send back the LCR. 25. This disposes the criminal appeal.