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2019 DIGILAW 1202 (GAU)

Amit Nayak v. State of Assam

2019-11-07

MIR ALFAZ ALI, NANI TAGIA

body2019
JUDGMENT : Mir Alfaz Ali, J. 1. Heard Mr. J. Payeng, learned counsel for the appellants and Ms. S. Jahan, learned Additional Public Prosecutor, Assam. Also heard Mr. S.N. Tamuli, learned counsel appearing for respondent No. 2. 2. This criminal appeal is directed against the judgment and order passed by the learned Sessions Judge, Golaghat in Sessions Case No. 148/2015, whereby the learned Sessions Judge convicted the appellants under section 302/34 IPC and sentenced them to undergo Rigorous Imprisonment for life and fine of Rs. 5,000/- each with default stipulation. 3. As per the prosecution case, on 19.09.2015 at about 5.30 p.m. the appellants Amit Nayak and Ranjit Rana assaulted the victim Meghnath Hari and thereby caused serious injuries. Immediately he was shifted to K.K. Civil Hospital, Golaghat for treatment wherefrom the victim was referred for better treatment to Jorhat Medical College. Initially the appellants provided financial help of Rs. 5,800/- to the victim for treatment and also promised to bear the further cost of treatment but subsequently, the appellants did not provide money for further treatment and therefore, the victim could not be taken to Dibrugarh for better treatment. After few days when the health of the victim deteriorated, he was again taken to K.K. Civil Hospital for treatment, where he died. Thereafter, an FIR was lodged on 07.10.2015 by the wife of the victim, on the basis of which police registered Jamuguri PS Case No. 50/2015 under Sections 302/34 IPC and on completion of investigation laid charge-sheet against both the appellants under sections 302/34 IPC. 4. In the course of trial, learned Sessions Judge framed charge under section 302/34 IPC against the appellants, to which, they pleaded not guilty. In order to bring home the charge, the prosecution examined as many as 12 (twelve) witnesses and on appreciation of evidence, learned Sessions Judge convicted the appellants under section 302/34 IPC and awarded sentence as indicated above. 5. We have considered the submissions made by the learned counsel for both the sides. 6. On our assessment of the evidence, we find that the prosecution case rests primarily on the oral testimonies of PW-1, PW-5, PW-8 and PW-10, who claimed to be the eye witness of the occurrence as well as, the testimony of PW-4, the doctor who conducted the post-mortem examination. 7. PW-4 Dr. 6. On our assessment of the evidence, we find that the prosecution case rests primarily on the oral testimonies of PW-1, PW-5, PW-8 and PW-10, who claimed to be the eye witness of the occurrence as well as, the testimony of PW-4, the doctor who conducted the post-mortem examination. 7. PW-4 Dr. Robin Tamuly who conducted the post-mortem examination on the body of the victim found the following injuries: (i) Swelling and black eye left side of face. (ii) Abrasion around 3 x 2 cm. On left side of face above left eye. (iii) On cut section of brain, haematoma seen over left fronto-temporal region. Another haemotoma over right occipital region of brain. Thorax - normal. Abdomen - normal. Liver, spleen, kidneys: normal. No diseases and deformities seen. No dislocation seen. All the changes are ante mortem in nature. Time since death is less than 36 hours. In the opinion of the doctor death was caused due to shock and haemorrhage leading to coma due to head injury sustained by the deceased. The doctor in his cross-examination further stated that all the injuries sustained by the victim could be caused by falling on hard substance. 8. PW-1 Mrs. Sabitry Hari, wife of the deceased deposed, that at about 4.00 PM on the day of occurrence her husband was going to Daljan Tiniali for shopping. After her husband left the house for going to Dalijan Tiniali, she heard commotion towards Daljan Tiniali and she immediately went there and noticed that both the appellants were dealing blows to the victim with their hands and thereby made him fell on the concrete road. She also stated to have seen accused Amit Nayak giving a leg blow, as a result of which the victim fell on the ground, with his head down and after assaulting the victim the appellants left the place. She further stated that the appellants paid him Rs. 5,000/- for treatment of her husband and also promised to provide all necessary expenses which may be required for further treatment of the victim. According to her the victim was initially taken to Jorhat and the doctors of Jorhat Medical College Hospital referred the victim to Dibrugarh. As the appellants did not provide financial help, she could not take her husband for treatment to Dibrugarh and stayed at Jorhat for 10 (ten) days and thereafter deceased was released from Jorhat Hospital. According to her the victim was initially taken to Jorhat and the doctors of Jorhat Medical College Hospital referred the victim to Dibrugarh. As the appellants did not provide financial help, she could not take her husband for treatment to Dibrugarh and stayed at Jorhat for 10 (ten) days and thereafter deceased was released from Jorhat Hospital. After remaining three days in home the condition of the deceased deteriorated and again she took the victim to Golaghat Civil Hospital, where he died. During cross-examination, she stated that her husband used to consume liquor whenever he earned money. 9. PW-5 deposed that he has seen Amit Nayak involved in scuffle with Meghnad (deceased). He further stated, that Amit Nayak dealt 2-3 slaps to him and the victim fell down on the road and sustained injuries on his head. He also stated, that he did not see Ranjit Rana assaulting the victim. According to him Ranjit was standing near the place of occurrence. 10. PW-8 turned hostile, however, there is nothing material in the oral testimony of PW-9 which could be of any assistance to the prosecution case. 11. A dispassionate scrutiny of the aforementioned oral testimony would show that PW-1 and PW-5 were eye witnesses of the occurrence. According to PW-1, because of a leg blow given by the appellant Amit Nayak, the victim fell on the road with his head down and sustained injuries on his head which ultimately became fatal. According to PW-5, Amit Nayak dealt 1-2 slaps to the victim. PW-5 further stated that the appellant Ranjit Rana was simply standing near the place of occurrence. Apparently, no instrument or weapon was used by any of the appellants and the injury on the head of the victim was caused by falling on the concrete road after getting leg blow from Amit Nayak. 12. The medical evidence as deposed by the doctor that the injury could be caused by fall on hard substance also supported the oral testimony of PW-1 and PW-5 that victim sustained injuries on the head by falling on the concrete road. From the medical evidence it further appears, that the victim died due to injury on the head. The injury on the head which ultimately caused death of the victim after two weeks of the occurrence, was evidently not the direct consequence of the assault made by the appellants. From the medical evidence it further appears, that the victim died due to injury on the head. The injury on the head which ultimately caused death of the victim after two weeks of the occurrence, was evidently not the direct consequence of the assault made by the appellants. FIR was lodged after 18 days during which the victim was undergoing treatment and it is also in the evidence that the appellants provided monetary assistance for treatment of the victim. 13. On the basis of the evidence brought on record, that the appellants were not armed with weapon and the victim was given only one or two slaps and allegedly a leg blow by the appellant Amit Nayak, as a result of which the victim fell down, in our considered view neither intention to cause death or nor intention to cause such bodily injuries, as is likely to cause death can be attributed to the appellant. From the nature of assault it is also difficult to attribute the knowledge to the victim that they were likely, by such act to cause death. Section 300 IPC defines murder as under: 300. Murder - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. Secondly - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. Thirdly - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Fourthly - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 14. Section 299 IPC defines culpable homicide as under: 299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Section 299 IPC defines culpable homicide as under: 299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 15. Having assessed the evidence on record as indicated above, we are of the view that none of the ingredient of the offence of murder or culpable homicide as indicated above is present in the instant case. Therefore, the appellants in our considered view cannot be held liable for any offence of culpable homicide. What we find is that the appellants assaulted the victim and caused some injury and therefore, nothing more than an intention to cause hurt could be attributed to the appellants in the facts and circumstances of the case. Being of the above view, we find that the prosecution evidence was grossly inadequate to bring home the charge of culpable homicide and as such, we are unable to concur with the findings of the learned trial Court, whereby the appellants were held guilty of committing murder. Accordingly we set-aside the conviction and sentence of the appellants under section 302 IPC. However, having regard to the evidence and materials on record which clearly established that the accused persons voluntarily caused hurt to the victim, we convict the appellants under section 323 IPC and sentenced them to undergo imprisonment for 1 (one) year. The appeal accordingly stands partly allowed. 16. The bail bond, if any, stands discharged. 17. We notice that the learned Sessions Judge has awarded a compensation of Rs. 30,000/- which in our considered view is inadequate in view of the fact, that the informant lost her husband in the unfortunate incident, which obviously pushed the family into serious hardship. Accordingly, we provide that a compensation of Rs. 3,00,000/- be provided to the dependents of the victim. The Legal Services Authority shall provide the said compensation under the Assam Victim Compensation Scheme, 2012. 18. Send down the LCR along with a copy of this judgment and order.