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2019 DIGILAW 222 (GAU)

Nibhu Roy v. State of Assam

2019-02-19

RUMI KUMARI PHUKAN

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JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. MH Rajbarbhuiyan, learned counsel appearing for and on behalf of the appellants as well as Mr. B.J. Dutta, learned Addl. P.P., Assam representing the State respondent. 2. This appeal is preferred against the judgment and order dated 05.09.2017, passed by the learned Sessions Judge, Cachar at Silchar in Sessions Case No.37/2014, whereby the learned Sessions Judge convicted and sentenced accused/appellant No.1, Nibhu Roy, under Section 304 (Part II) of the IPC, to undergo Rigourous Imprisonment (R/I) for a period of five years along with fine of Rs. 2,000/- and in default of fine, further R/I for a period of one month, whereas the accused/appellant No.2 Purnima Roy is convicted and sentenced under Section 324 of the IPC, to undergo R/I for a period of 6 months. The period of custody during the investigation shall be set of from the above sentences. 3. The case of the prosecution in nutshell is that, on 13.06.2011, at about 10:00 P.M., the two accused persons namely Nibu Roy and Purnima Roy (both are husband and wife), armed with deadly weapons went in front of the house of Ranjit Roy and started rebuking them in bad language although Ranjit Roy was not in the house. Hearing the commotion outside, two neighbouring persons namely Rossendra Roy and Subhas Roy came out and enquired about what happened for their making nuisance in the area. Got annoyed, the accused Nibu Roy inflicted a dao blow on the head of Rossendra Roy, as a result of which he fell down on the ground and when Subhas Roy went to rescue Rossendra Roy, he was also assaulted by the accused persons at his hand and forearm, as a result of which he also sustained injuries. The neighbouring people arrived at the place of occurrence and shifted the injured to the hospital. One of the injured Rossendra Roy succumbed to his injuries in the Gauhati Medical College and Hospital (GMCH), to which he was referred for further treatment. The other injured took the treatment at Silchar Medical College and Hospital (SMCH), for the injuries he sustained. 4. Narrating the above incident, the wife of the deceased person namely Smti Joly Roy (PW.1) filed an FIR and accordingly the Silchar P.S. Case No.933/2011, under Sections 447/294/324/34 of the IPC was registered and subsequently Section 302 of the IPC was also added. 4. Narrating the above incident, the wife of the deceased person namely Smti Joly Roy (PW.1) filed an FIR and accordingly the Silchar P.S. Case No.933/2011, under Sections 447/294/324/34 of the IPC was registered and subsequently Section 302 of the IPC was also added. On due completion of the investigation, the Investigating Officer submitted the charge sheet against both the accused persons under said section of law. 5. The accused persons entered their appearance before the Court of Magistrate and after complying the provisions under Section 207 of the Cr.P.C., the case was committed to the Court of Sessions for trial, being the offences triable by the Court of Sessions. 6. The accused persons stood the trial and denied the charge framed under Sections 324/302/34 of the IPC. 7. In course of trial, the prosecution examined 8 witnesses including the Medical Officers and the Investigating Officer, whereas the defence examined none. The plea of the defence was of total denial. The accused also denied the allegations while giving their statement under Section 313 of the Cr.P.C. 8. The learned trial Court, at the conclusion of the trial held the accused Nibu Roy guilty under Section 304 (Part II) of the IPC, whereas accused Purnima Roy was held guilty under Section 324 of the IPC. The trial Court was of the opinion that there was no intention to kill deceased Rossendra Roy on the part of the accused person and due to the sudden fury between the parties, he inflicted such injury. The accused Nibu Roy was sentenced to undergo R/I for a period of five years along with fine of Rs. 2,000/- and in default of fine, further R/I for a period of one month. The accused Purnima Roy who is mother of three children and the younger one is of 1 years, was sentenced to under Section 324 of the IPC, to undergo R/I for a period of 6 months. 9. Being aggrieved with the aforesaid sentence and order, the present appeal has been preferred. 10. I have heard the submission of learned counsel for both the parties as well as perused the documents on record and the evidence adduced by the prosecution. 11. Mr. 9. Being aggrieved with the aforesaid sentence and order, the present appeal has been preferred. 10. I have heard the submission of learned counsel for both the parties as well as perused the documents on record and the evidence adduced by the prosecution. 11. Mr. MH Rajbarbhuiyan, the learned counsel for the appellant has urged before this Court to consider the fact that the deceased Rossendra Roy was not the target on the part of the accused/appellant to assault or otherwise to kill and they had some quarrel with Ranjit Roy, for which they went to the house of Ranjit Roy and was rebuking their family. But unfortunately these two persons involved with an altercation with the accused persons and in the process both the persons were assaulted. It has been submitted to consider the facts that the evidence also indicated the above aspect that there was no intention on the part of the accused/appellants to assault and kill any of the injured in the present case. 12. On the other hand, Mr. B.J. Dutta, the learned Addl. P.P., Assam has submitted that overwhelming evidence on record substantiate the proposition that because of the serious cut blows dealt upon the victim Rossendra Roy on his vital part, he died and the other accused also dealt cut blow on the person of Subhas Roy and the same aspect has been sufficiently established by the injured Subhas Roy and other supporting witnesses. It has also been contended that in view of the medical reports on record, the injuries sustained by the deceased as well as by the injured survived is discernable which are serious in nature. Accordingly it has been urged that accused deserves no consideration as they have already availed some benefit from the trial Court for which instead of convicting the accused Nibu Roy under Section 302 IPC, he is convicted under Section 304 (Part II) of the IPC. Similarly the conviction as regards the other accused Purnima Roy is also adequately dealt with by the trial Court and the impugned order call for no interference. 13. I have also gone through the evidence on record. 14. Pw.1, Smti Joly Roy is the informant. Similarly the conviction as regards the other accused Purnima Roy is also adequately dealt with by the trial Court and the impugned order call for no interference. 13. I have also gone through the evidence on record. 14. Pw.1, Smti Joly Roy is the informant. She has stated all about the incident as has been revealed in the FIR that on the date of occurrence, the accused persons were creating halla in front of the house of Ranjit Roy and hearing their hue and cry, her husband Rossendra Roy and brother-in-law Subhas Roy went out and asked as to the reasons of their making halla. At this, the accused Nibu Roy suddenly dealt a cut blow on the head of Rossendra Roy and as soon as her brother-in-law Subhas Roy went forward to rescue her husband, then he was also assaulted by both the accused persons with sharp weapons, resulting serious injuries on both the persons. The injured were taken to the hospital but her husband succumbed to injuries at GMCH after 14 days and the other injured also hospitalized for his injuries sustained for several days. 15. Supporting her evidence, the PW.2 Bijoy Sarkar, PW.3 Sadhan Roy and PW.4 Sandhya Roy, all of them have also stated that on the date of occurrence the accused persons were making hue and cry in front of the house of Ranjit Roy and they also saw that as soon as Rossendra Roy and Subhas Roy asked them as to the reason of their making halla, then accused Nibu Roy dealt a cut blow with a dao on the head of Rossendra Roy and when Subhas Roy went forward to save Rossendra Roy, he was also assaulted by the accused with a bothidao. They were the eye witnesses to the entire incident. 16. Pw.5, Sri Subash Roy, the injured of the incident deposed that hearing halla to the effect that mother of Baptu was assaulted by Nibhu Roy, he came out and saw a cruiser vehicle was brought out from the garage of Ranjit Roy for taking the injured i.e. the mother of Baptu. PW.5 saw the injuries on the head of mother of Baptu and he also saw a dao in the hand of Nibu and a botidao in the hand of Purnima. PW.5 saw the injuries on the head of mother of Baptu and he also saw a dao in the hand of Nibu and a botidao in the hand of Purnima. He further deposed that, on query made by deceased Rossendra as to why the mother of Baptu had been assaulted, there had been altercation and in course of such altercation accused Nibu dealt dao blow on the head of Rossendra who fell down on the ground and while seeing the same he went to rescue Rossendra. Then Nibu and Purnima assaulted him with their dao and bothidao causing injuries on his right hand and forearm and he lost his sense. He was taken to SMCH where he regained his sense. The witness remained 6-7 days in the hospital for treatment. He further deposed that Rossendra Roy who was his maternal cousin was referred to Guwahati Medical College during treatment and there he succumbed to his injuries. 17. Nothing emerges to discredit their evidence as no effective cross-examination was there to rebut the evidence. So the facts remains that Rossendra Roy and Subhas Roy were assaulted by the accused persons on the fateful day, as has been stated by the informant in the FIR. 18. Now as regards the injuries sustained, two medical officers have been examined. While the PW.6 Dr. Shourya Brata Choudhury examined injured Subhas Roy on 13.06.2011 and he found two incised wounds and one lacerated injury on the person of Subhas Roy and he has opined that the injuries were simple cut injuries by sharp and blunt object. 19. The another Medical Officer is Dr. Nobojit Barman (PW.8) has also testified that on 25.06.2011 he conducted the postmortem examination on Roessendra Chandra Roy with reference to the present case and he found the following injuries: (1) a stitched wound of length 18 c.m. in was present over right side of the head extending from 3 c.m. above the eyebrow upto the occipital protuberance, running parallel to the sigittal suture, 3.5 c.m. away from the midline and repaired by 15 nos. of stitches. (2) a stitch wound of length 3 cm is present over right parietal region, running transversely from injury No.1 towards right, 8 cm above the eyebrow and repaired by 3 nos. stitches . of stitches. (2) a stitch wound of length 3 cm is present over right parietal region, running transversely from injury No.1 towards right, 8 cm above the eyebrow and repaired by 3 nos. stitches . The doctor opined that the death was due to coma as a result of head injury sustained as described and the injuries were ante mortem in nature, caused by moderately, heavy sharp cutting weapon and homicidal in nature. 20. The Investigating Officer, Sri Manik Ch. Paul (PW.7) has given evidence as regards the finding of FIR and collected the injury report of the victims who were already admitted in the hospital and after due completion of the investigation, he submitted charge sheet as has been discussed above. It is to be noted that no any omission or material contradiction was brought on record against any of the witnesses to discredit their evidence. Thus from the entire evidence or record, it can be found and hold that the deceased Rossendra Roy died of the injury inflicted upon him by the accused Nibu Roy and injured Subhas Roy also sustained injury at his hand and forearm for the injury inflicted by both the accused persons. 21. Now, of course, the incident itself reveals that the target of the accused was not those injured persons to commit any offence but due to the sequence of events that has happened and those two persons came out at the place of occurrence for asking the accused regarding their making halla in the place of occurrence, then the accused suddenly inflicted injuries upon both the persons as discussed above. 22. In the above backdrop, the learned trial Court has also rightly observed that the case will not attract the offence under Section 302 IPC, as the incident took place at the spar of moment and so the offence under Section 304 (Part II) of the IPC is attracted against the accused Nibu Roy and the offence under Section 324 IPC is brought against accused Purnima Roy. So far as the impugned conviction and sentence are concerned, there is no illegality or perversity in the aforesaid findings of the learned trial Court as regards the conviction of the accused persons. 23. So far as the impugned conviction and sentence are concerned, there is no illegality or perversity in the aforesaid findings of the learned trial Court as regards the conviction of the accused persons. 23. The learned counsel for the appellants however prayed for some leniency on the part of both the accused persons as both of them having three minor children and the accused Nibu Roy is behind the bar since the date of judgment, which is around one and half years. 24. I have considered the above submission of learned counsel for the appellants and it is to be noted that the learned trial Court has already awarded the sentence after considering the entirety of the matter. However it is to be noted that one of the accused i.e. Purnima Roy is a lady having three minor children and the injury sustained by the injured is not grievous one. Accordingly her sentence is reduced to the period already undergone by her during the course of investigation (three months). On the other hand, accused Nibu Roy is also behind the bar and because of his faulty behavior, he has suffered a lot for having no any reason to cause assault to the persons with whom he has no sort of enmity earlier, the offence has been committed. 25. Taking into note all the entire materials on record and considering the submission of learned counsel for the appellant, the sentence of accused Nibu Roy is reduced to four years, under Section 304 (Part II) of the IPC. The fine part of the order shall remain intact. 26. With the above alteration/modification, the appeal stands allowed partly. 27. Return the LCR along with a copy of judgment immediately.