Research › Search › Judgment

Gauhati High Court · body

2019 DIGILAW 401 (GAU)

Padum Bordoloi v. State Of Assam

2019-04-01

M.R.PATHAK, MANISH CHOUDHURY

body2019
JUDGMENT : Manish Choudhury, J. The instant appeal is preferred by 3 (three) appellants viz. (1) Sri Padum Bordoloi, (2) Sri Pranab Bordoloi and (3) Sri Jintu Pator under Section 374 (2), Code of Criminal Procedure, 1973 (Cr.P.C., in short), against the judgment and order dated 14.11.2014 passed by the learned Sessions Judge, Nagaon in Sessions Case No. 147(N)/2006, arising out of G.R. Case No. 794/2015. By the judgment and order dated 14.11.2014, all the accused appellants have been convicted under Section 302/34, Indian Penal Code and they all have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/- (Rupees ten thousand) only, in default, to undergo further term of simple imprisonment of 1 (one) year each. 2. It was on 23.05.2005, one Sri Rameswar Saikia, son of Late Manik Saikia resident of No. 1, Gedabari, Police Station-Jajori, District-Nagaon lodged an Ejahar before the Officer-in-Charge of Bebejia Police Out Post alleging, inter-alia, that at about 1-30 a.m. on 23.05.2005 when his nephew, Bhaskar Jyoti Saikia was returning home after enjoying a function held at Jamuguri Manbar Nath Primary School, the 2 (two) accused viz. Rupam Bordoloi and Jintu Pator in collusion with some other boys detained him on the way, at a distance of about 40 meters away from the school, and dealt blows to him in the head and other parts of the body with pieces of bricks, thereby, inflicting him serious injuries. It was further mentioned that the boy was in a critical condition and his treatment was going on in Guwahati. 3. On receipt of the aforesaid Ejahar, the In-Charge of Bebejia Police Out Post entered the same vide General Diary Entry No. 535 dated 23.05.2005 at 7:00 p.m. and thereafter, forwarded the said Ejahar to the Officer-in-Charge of Nagaon Police Station for registering a case under proper sections of law and he started the investigation of the case. On receipt of the Ejahar, the Officer-in-Charge, Nagaon Police Station registered a case being Nagaon Police Station Case No. 360/2005 under Sections 341/325/34, Indian Penal Code on 24.05.2005. 4. During the course of investigation, the place of occurrence was visited by the Investigating Officer (I.O.), recorded the statements of the witnesses under Section 161, Cr.P.C. and also prepared the sketch map (Exhibit-3). When the investigation was on, the injured, Bhaskar Jyoti Saikia succumbed to his injuries at the GNRC Hospital, Guwahati. 4. During the course of investigation, the place of occurrence was visited by the Investigating Officer (I.O.), recorded the statements of the witnesses under Section 161, Cr.P.C. and also prepared the sketch map (Exhibit-3). When the investigation was on, the injured, Bhaskar Jyoti Saikia succumbed to his injuries at the GNRC Hospital, Guwahati. Subsequent to his death, Section 302 of the Indian Penal Code was added in the case on the prayer of the I.O. The Inquest Report (Exhibit-6) on the dead body of the deceased was prepared at the GNRC Hospital, Guwahati on 27.05.2005 and thereafter, the dead body was sent to the Gauhati Medical College & Hospital (G.M.C.H.) at Guwahati for its post-mortem examination. The post-mortem examination of the dead body of the deceased, Bhaskar Jyoti Saikia was done on 28.05.2005 at the G.M.C.H. at Guwahati and accordingly, the Post-Mortem Examination Report (Exhibit-5) was prepared. 5. On conclusion of investigation, the I.O. submitted a charge sheet being Charge Sheet No. 476/2005 dated 31.01.2005 (Exhibit-4) finding a prima facie case against 4 (four) accused persons viz. (1) Rupam Bordoloi, (2) Pradum Bordoloi, (3) Jintu Patar and (4) Pranab Bordoloi for commission of offences under Sections 341/325/302/34, Indian Penal Code. 6. Subsequent to the charge-sheet and on their appearances before the Court of Chief Judicial Magistrate, Nagaon, the copies were furnished to all the accused persons under Section 207, Cr.P.C. As the offence under Section 302, Indian Penal Code was exclusively triable by the Court of Sessions, the case record of G.R. Case No. 794/2005 stood transmitted to the Court of Sessions, Nagaon by an order of commitment dated 07.06.2006 by the Chief Judicial Magistrate, Nagaon as per the provisions of Section 209, Cr.P.C. 7. Before the Court of Sessions, Nagaon, the learned Public Prosecutor and the learned defence counsel were heard on the point of charge and upon perusal of the materials available in the case records, charges under Section 302, Indian Penal Code as well as under Sections 302/34, Indian Penal Code were framed against all the 4 (four) accused persons. The charges were read over and explained to the accused persons and they pleaded not guilty and claimed to be tried. 8. During the course of trial, a total of 12 (twelve) prosecution witnesses were examined by the prosecution side and those witnesses were also duly cross examined by the defence. The charges were read over and explained to the accused persons and they pleaded not guilty and claimed to be tried. 8. During the course of trial, a total of 12 (twelve) prosecution witnesses were examined by the prosecution side and those witnesses were also duly cross examined by the defence. After completion of recording of evidence, the examination of 3 (three) accused persons viz (1) Padum Bordoloi, (2) Jintu Patar and (3) Pranab Bordoloi was made under Section 313, Cr.P.C. It is pertinent to mention that the accused, Rupam Bordoloi had expired during the pendency of the trial and hence, the case stood abated against him and the trial proceeded with against the remaining 3 (three) accused. The plea of the accused persons during their examination under Section 313, Cr.P.C was that total denial and innocence. Thereafter, the learned trial Court finding the 3 (three) accused persons guilty of the charges framed under Sections 302/34, Indian Penal Code, has convicted them by the impugned judgment and order dated 14.11.2014 and sentenced them as mentioned above. Hence the instant appeal. 9. We have heard Mr. B. M. Choudhury, learned counsel for the accused-appellants. We have also heard Ms. S. Jahan, learned Additional Public Prosecutor for the State. 10. Mr. Choudhury, in his submission, has submitted that there are discrepancies and inconsistencies in the testimony of the prosecution witnesses. Though, P.W. 4 and P.W. 6 were stated to be eye-witnesses, there were doubts about their very presence at the place of occurrence. If the evidence of P.W. 4 and P.W. 6 are read together, it emerges that one did not say about the presence of the other at the relevant point of time. As the injuries sustained by the deceased, appeared to have resulted from fists and blows and the victim died few days thereafter, the accused-appellants could not have been convicted under Section 302, Indian Penal Code as the intention to cause death was absent. In support of his submission, Mr. Choudhury relied on the decisions of Isub Ali -Vs- State of Tripura, (2007) 3 GauLT 962 and Mohinder Singh -Vs- State (Delhi Administration), (1985) CriLJ 1903 (SC). 11. Ms. In support of his submission, Mr. Choudhury relied on the decisions of Isub Ali -Vs- State of Tripura, (2007) 3 GauLT 962 and Mohinder Singh -Vs- State (Delhi Administration), (1985) CriLJ 1903 (SC). 11. Ms. S. Jahan, learned Additional Public Prosecutor has, on the other hand, submitted that the deceased had suffered a number of grievous injuries on his person, as has been established from the Post-Mortem Examination Report (Exhibit-5) and from the evidence of P.W. 12, the doctor who conducted the post-mortem examination. The presence of P.W. 4 and P.W. 6 at the place of occurrence cannot be doubted and the discrepancies in their evidence, if any, were minor in nature. From the evidence on record, it cannot be said that the offence of murder was not committed. In that view of the matter, the learned trial Court has rightly convicted the accused-appellants by the judgment and order under challenge in this appeal. 12. In order to appreciate contentions of the parties in the right perspective and to find out the as to what offence had been committed, it would require an analysis of the evidence on record sans the unnecessary details. 13. Before going to the evidence of the other witnesses, it would be apposite to find out as to what injuries the deceased had sustained on the date of occurrence. P.W. 12, Dr. Bidit Kumar Gogoi was the doctor who conducted the post-mortem examination on 28.05.2005 at the G.M.C.H., Guwahati. Upon his examination, he had made the following observations:- “A male dead-body of average built and fair complexion covered by cloth. Body cold on touch. Eyes closed, cotton piece placed on both the nostrils. Rigor mortis present in the body. Genital and anus healthy. Injury : 1. Contusion of size 5 cm x 5 cm present over the head situated at the backside place 3 cm left to the middle and 3 cm above the level of occiput. 2. Laceration of size 2 cm x 2 cm present over the right arm on the back side 4 cm above the elbow. There is no mark of ligature. Stomach healthy and contains 250 ml. (approximately) liquid substance. Small intestine and large intestine healthy. Scalp - Injury as described. 2. Laceration of size 2 cm x 2 cm present over the right arm on the back side 4 cm above the elbow. There is no mark of ligature. Stomach healthy and contains 250 ml. (approximately) liquid substance. Small intestine and large intestine healthy. Scalp - Injury as described. Skull - Depressed fracture of size 3 cm x 2 cm present at the backside of the skull 3 cm left to the mid line and 2 cm above the occiput. Brain - Brain contains sub-dural hemorrhage as described above. 14. Exhibiting the post-mortem examination report (Exhibit-5), he opined that the death was due to coma resulting from the injuries described therein. He further opined that all the injuries were anti-mortem in nature and consistent with the blunt force impact. In his crossexamination, he stated that he did not examine the spinal cord of the deceased. He further stated that the injuries which he detected over the dead body might not be the cause due to accidental death because there was no associate injury over the body. 15. It is seen from the Ejahar dated 23.05.2005 (Exhibit-5), the incident had happened during the night intervening 22.05.2005 and 23.05.2005 i.e. early hours 23.05.2005. At the time of lodging the Ejahar, the victim did not succumb to the injuries sustained, mentioned above, and his treatment was going on at the GNRC Hospital, Guwahati. It was on 27.05.2005, another Ejahar (Exhibit-1) was submitted by P.W. 4, Sibananda Saikia before the Officer-in-Charge, Dispur Police Station stating, inter-alia, that during the Bihu function held at Jamuguri Primary School under Police Station-Bebejia on the date of the incident, Rupam Bordoloi, Jintu Patar and their 15 (fifteen) other companions assaulted Bhaskar Jyoti Saikia inflicting serious injuries on his person. He was, initially, admitted at the Nagaon Civil Hospital in a critical condition and thereafter, he was referred to the GNRC Hospital at Guwahati. Mentioning that a case was lodged with the Nagaon Police Station as Nagaon Police Station Case No. 360/2005, he informed that Bhaskar Jyoti Saikia died at about 10:30 a.m. on 27.05.2005 and requested to take necessary steps for post-mortem examination on the dead body. 16. Mentioning that a case was lodged with the Nagaon Police Station as Nagaon Police Station Case No. 360/2005, he informed that Bhaskar Jyoti Saikia died at about 10:30 a.m. on 27.05.2005 and requested to take necessary steps for post-mortem examination on the dead body. 16. It is evident from the Inquest Report (Exhibit-6) that the inquest on the dead body of Bhaskar Jyoti Saikia was done at the GNRC Hospital, Guwahati through the Dispur Police Station on 27.05.2005 and thereafter, the body was sent to the G.M.C.H. for its post-mortem examination. It was in such circumstances, as evident from the deposition of the I.O. (P.W. 11), the I.O. submitted an application before the Chief Judicial Magistrate, Nagaon to add Section 302, Indian Penal Code in Nagaon Police Station Case No. 360/2005 and on the prayer being allowed, the offence under Section 302, Indian Penal Code came to be added in Nagaon Police Station Case No. 360/2005. Thus, it is evident from the afore-mentioned facts, Bhaskar Jyoti Saikia did not succumb to his injuries sustained by him in the incident occurred in the night intervening 22.05.2005 and 23.05.2005 instantaneously and he died as a result of the injuries sustained on 27.05.2005 after undergoing medical treatment during the interregnum. 17. The informant, Rameshar Saikia who lodged the Ejahar (Exhibit-2) was not examined by the prosecution. However, P.W. 8, Jibon Borah in his evidence stated that he wrote the Ejahar (Exhibit-2) as per the instructions of Rameshwar Saikia and he did not have any personal knowledge regarding the incident. 18. P.W. 1, Utpal Bordoloi was the President of the Bihu Committee which organized the Bihu function at Jamuguri on the date of occurrence. He deposed that at the time of occurrence, he was in the office of the Bihu Committee. That night, a comedy group consisting of boys performed in the Bihu function and after performance, they had gone from the place. After about half an hour, there was a fight between two groups and a member of the comedy group was assaulted. He stated that he did not see the occurrence but heard that a boy named Saikia who was assaulted, expired in the hospital. 19. P.W. 2, Lakhi Prasad Nath deposed that he knew the accused persons but he did not know their names. The occurrence took place in the Bohag Bihu function held in his village Jamuguri. He stated that he did not see the occurrence but heard that a boy named Saikia who was assaulted, expired in the hospital. 19. P.W. 2, Lakhi Prasad Nath deposed that he knew the accused persons but he did not know their names. The occurrence took place in the Bohag Bihu function held in his village Jamuguri. Upto 2:00 a.m., he was in the office of the Bihu Committee and, thereafter, he went to his home. He was informed by his mother in the next morning that there was a quarrel near the Bihu Committee office and a boy was seriously injured in the quarrel and the injured was referred to G.M.C.H. He did not know how and between whom the quarrel took place. 20. P.W. 3, Jitu Kumar Nath stated, in his evidence, that there was a Bihu function at Jamuguri Manbar Nath Lower Primary School on the date of occurrence and he was the Secretary of the Bihu Committee. He had no knowledge regarding the occurrence. At that stage, this witness was declared to be a hostile one by the prosecution and on a prayer being made; he was allowed to be cross-examined by the prosecution. In his cross-examination by the prosecution side, he denied the fact that he stated before the police that at about 11:00 p.m. on that day, there was a quarrel between the accused and the deceased when the Bihu function was going on and the quarrel was to be stopped by their intervention and only thereafter, the Bihu function was restarted. He denied the fact that he stated before the police that at about 1-30 p.m. again, they heard noise at a distance of about 150 feet and on reaching there, saw Bhaskar lying in an unconscious state. In his cross-examination by the defence side, he stated that he did not know the accused persons by names and faces but he knew that they were from Bebejia. Since he was the Secretary of the Bihu Committee he was all along busy with the Bihu function. 21. P.W. 5, Dimbeswar Saikia deposed to the affect that he was a member of the comedy group, Rasaraj Koutuk who performed in the Bihu function held at the Lower Primary School of Jamuguri village on the date of occurrence. Since he was the Secretary of the Bihu Committee he was all along busy with the Bihu function. 21. P.W. 5, Dimbeswar Saikia deposed to the affect that he was a member of the comedy group, Rasaraj Koutuk who performed in the Bihu function held at the Lower Primary School of Jamuguri village on the date of occurrence. He stated that while they were coming out after performing at the stage one Dipen informed them that Bhaskar was being assaulted by some persons and they immediately went towards the place of occurrence. He did not see the accused. But from the place of occurrence, Bhaskar was taken to a Nursing Home first and thereafter, he heard that Bhaskar died in the GNRC Hospital, Guwahati. In his cross- examination, he stated that they heard that Bhaskar was assaulted at 1:15 a.m. When they came to the place of occurrence, they found Bhaskar lying and there was a huge gathering at that time. 22. P.W. 7, Chandan Saikia is a cousin of the deceased, Bhaskar Jyoti Saikia and he knew the accused persons. He stated that when the occurrence took place he was at home. At about 10:30 p.m., he heard that Bhaskar was assaulted and then, he went to the place of occurrence where a Bihu function was organized. He saw Bhaskar lying there and he was not in a position to speak. He came to know from the people assembled there that Bhaskar was assaulted by the accused persons. He then brought Bhaskar to the B.P.Civil Hospital, Nagaon in a vehicle and Bhaskar was unconscious at that time. As Bhaskar was referred to Guwahati thereafter, they took him to the GNRC Hospital, Guwahati where he died after 2 (two) days. In his cross-examination, he stated that he did not see the occurrence. This witness was further examined under Section 311, Cr.P.C on 23.09.2014. He deposed that in the Inquest Report (Exhibit-6) prepared by police, he signed as a witness. He could not say where the dead body of Bhaskar Jyoti was when he signed in the Inquest Report. He brought the dead body himself from Guwahati.. 23. P.W. 9, Romen Kalita stated that he did not know either the accused persons or the deceased. He could not say where the dead body of Bhaskar Jyoti was when he signed in the Inquest Report. He brought the dead body himself from Guwahati.. 23. P.W. 9, Romen Kalita stated that he did not know either the accused persons or the deceased. On the night of the occurrence, he was coming towards his home after watching Bihu function at Namoti and when he arrived near the Bihu function held at Jamuguri, he saw a boy lying in an injured condition on the ground. He saw many people assembled there. In his cross-examination, he stated that he did not have any personal knowledge about the incident. 24. P.W. 10, Rajib Bora deposed that he did not know the accused but knew the deceased Bhaskar. On the date of occurrence, there was a Bihu function at Jamuguri village and he attended the function. The function ended at about 11:00 p.m. After coming out from the function, he took his bike and on the way, he saw the deceased lying on the ground. Then they arranged a vehicle and took Bhaskar the Nagaon Civil Hospital. He was referred to the G.M.C.H. and his family members took him to Guwahati. He did not know who assaulted Bhaskar. And that stage, the prosecution declared him to be hostile and the prosecution side was allowed to cross-examine him. In the cross-examination by the prosecution side, he denied that he stated before the police that on the date of occurrence, he saw Rupam, Padum, Jintu and Pranab assaulting on the chest of Bhaskar and thereafter, Jintu and Padum assaulting him also on his head and they assaulted him with a brick as a result of which Bhaskar fell down and, in the meantime, the accused fled away seeing other people gathering in the place. In his cross-examination by the defence side, P.W. 10 stated that he did not see the accused assaulting Bhaskar and when he arrived near Bhaskar he saw several persons near Bhaskar. 25. From a reading of the above testimonies of P.Ws. 1, 2, 3, 5, 7, 9 and 10, it is seen that none of them has deposed that they had seen the actual incident of assault on Bhaskar by the accused persons and their evidence is hearsay in that respect. 25. From a reading of the above testimonies of P.Ws. 1, 2, 3, 5, 7, 9 and 10, it is seen that none of them has deposed that they had seen the actual incident of assault on Bhaskar by the accused persons and their evidence is hearsay in that respect. What is clear from their evidence that there was a Bihu function at Jamuguri Lower Primary School premises and immediately after the Bihu function, Bhaskar was found lying in a seriously injured condition at a nearby place where the Bihu function was held. A number of people had seen Bhaskar lying in a seriously injured condition and he was immediately taken to the Nagaon Civil Hospital and thereafter, he was referred to Guwahati for better treatment. 26. P.W. 4, Sibananda Saikia is a cousin of the deceased, Bhaskar. He deposed that the occurrence took place at Jamuguri village near Bebejia at about 12:30/1:00 a.m. where there was a Bihu function in the Lower Primary School field. Some of them belonging to a comedy group went to the function. He knew the accused persons. At the Bihu function, there was a quarrel between the accused persons and the deceased, Bhaskar. The place of occurrence was at a distance at about 50 meters from the Bihu pandal and there was electric light. All the four accused persons assaulted Bhaskar with pieces of bricks and gave him blows with fists. He and Dipen (P.W. 6) tried to intervene but they were pushed back by the accused. After assaulting Bhaskar with bricks, kicking and giving him blows with hands, all the accused persons fled away. Bhaskar was lying on the ground and became senseless. They brought him to the G.D. Nursing Home but he was not admitted into the Nursing Home and then, they brought him to the Nagaon Civil Hospital. From there, he was referred to Guwahati and they took him to the GNRC Hospital, Guwahati where he died after about 4/5 days. He filed the Ejahar (Exhibit-1) at the Dispur Police Station and the post-mortem examination on the dead body was conducted in the G.M.C.H. Thereafter, the dead body was taken to Nagaon. In his cross-examination, P.W. 4 stated that the occurrence took place in the Bebejia - Jamuguri pucca road. He filed the Ejahar (Exhibit-1) at the Dispur Police Station and the post-mortem examination on the dead body was conducted in the G.M.C.H. Thereafter, the dead body was taken to Nagaon. In his cross-examination, P.W. 4 stated that the occurrence took place in the Bebejia - Jamuguri pucca road. He further stated that the quarrel started inside the pandal at about 11/11-30 p.m. At that time, the Bihu Committee members resolved the dispute whom he did not know by names. He then stated that though he knew the accused he did not know their names. When the first quarrel started he was present there but he did not know the reason of the quarrel. The quarrel again started when they went to the place of occurrence to take their motorcycles. When Bhaskar was about to start his motorcycle, the accused persons started assaulting him. As a result of the assault Bhaskar fell down on the ground. He denied that he did not state before the police or in the FIR that there was electric light in the place of occurrence. He denied the suggestion that the accused persons did not assault Bhaskar and there was no light at the place of occurrence. 27. P.W. 6, Dipen Bora stated, in his evidence, that he knew the accused persons and on the date of occurrence, there was a Bihu function in the premises of Jamuguri Lower Primary School. He was a member of the comedy group which went to perform in the Bihu function that evening. When at about 10:00 p.m. some of the members of the comedy group were performing on the stage, he was with Bhaskar enjoying the performance from inside the pandal. At that time, there was some altercation between Bhaskar and the accused, Pranab Bordoloi @ Saru Bhaiti. That quarrel was stopped due to intervention of some other persons. He further deposed that at about 1:30 a.m., when the programme ended while all the members of the comedy group were preparing to come back, he along with Bhaskar came out from the pandal and proceeded towards the place where they parked their motorcycles. It is then, when they were about to reach the said parking place, the accused persons assaulted Bhaskar with kicks blows for which Bhaskar fell down on the ground and then the accused persons ran away for the said place. It is then, when they were about to reach the said parking place, the accused persons assaulted Bhaskar with kicks blows for which Bhaskar fell down on the ground and then the accused persons ran away for the said place. He also deposed that Bhaskar was, thereafter, taken away to the Nagaon Civil Hospital and on the next day he was referred for treatment to Guwahati where he died. In his cross-examination, P.W. 6 stated that he did not know all the accused persons prior to the occurrence by names and faces, except Rupam. There was about 10 (ten) members including himself, in the comedy group which went to perform in the Bihu function. He, Darsan Mahanta, Sibananda, Rajib, Dimbiswar were also in a group. After the performance, he and Bhaskar went out of the pandal at first and the occurrence took place near the pandal. Some of them went to the function in motorcycles and some by cars. He stated that after starting the bike he was coming out, but Bhaskar could not get up on it, as just before the said moment, the incident took place. He denied the suggestion that he did not know the accused by names and faces. He denied the fact that he did not start the motorcycle of Bhaskar to come from that place. 28. P.W. 11, Kulendra Bharali was the Investigating Officer (I.O.) of the case. He stated that on 23.05.2005, he received the Ejahar (Exhibit-2) at the Bebejia Out Post and, accordingly, Nagaon Police Station Case No. 360/2005 under Sections 341/325/34, Indian Penal Code was registered. He recorded the statements of the complainant and the other witnesses and by visiting the place of occurrence prepared a sketch map (Exhibit-3) of the place of occurrence. The injured Bhaskar was brought to the Nagaon Civil Hospital and was referred to G.M.C.H., Guwahati for better treatment. At the GNRC Hospital, Guwahati, Bhaskar succumbed to his injuries. Thereafter, post-mortem examination was conducted at the G.M.C.H., Guwahati. After the death, Section 302, Indian Penal Code was added to the case on his prayer made to the Chief Judicial Magistrate, Nagaon. During the investigation, he arrested Rupam (since dead), Padum, Jintu Pator and Pranab @ Suru Bhaiti. In his cross- examination, he stated that he visited the place of occurrence at Jamuguri village on 24.05.2005 at 11-50 a.m. 29. On the perusal of the testimonies of P.Ws. During the investigation, he arrested Rupam (since dead), Padum, Jintu Pator and Pranab @ Suru Bhaiti. In his cross- examination, he stated that he visited the place of occurrence at Jamuguri village on 24.05.2005 at 11-50 a.m. 29. On the perusal of the testimonies of P.Ws. 4 and 6, who were the eye-witnesses to the incident, it has emerged that when the Bihu function was going on there occurred an altercation between the deceased, Bhaskar and the accused persons prior to midnight inside the Bihu pandal and at the intervention of some other persons including the Bihu Committee members, the parties were separated and the matter was stated to be resolved. Thereafter, at a time past midnight the members of the comedy group started making preparation for their departures after their performance was over in the Bihu function and they started for the places where their vehicles were parked. Bhaskar and P.W. 6 came out from the pandal first and they reached near the place where they parked their motorcycles. At that time, the accused persons started assaulting Bhaskar with pieces of bricks, kicks and fists before Bhaskar could start his motorcycle. On being so assaulted, Bhaskar fell down on the ground. At that point of time, though P.Ws. 4 and 6 tried to intervene they were prevented. Thereafter, the accused persons fled away from the place of occurrence. Then other people gathered at the place thereafter. The place where Bhaskar was attacked and beaten was near to the Bihu pandal and the motorcycles of the members of the comedy group were parked there. The fact that there was electric light in the place of occurrence was not disputed, meaning thereby, the incident did not happen in darkness. As is generally the case, lights are installed in a Bihu function. As such, that there was sufficient lighting to identify the assailants at a time past midnight is not to be disbelieved and it was possible for P.Ws. 4 and 6 in such light to identify the assailants who attacked Bhaskar. The presence of P.Ws. 4 and 6 at the place of occurrence at that time was natural as they were members of the same comedy group who went to the Bihu function together including Bhaskar. 4 and 6 in such light to identify the assailants who attacked Bhaskar. The presence of P.Ws. 4 and 6 at the place of occurrence at that time was natural as they were members of the same comedy group who went to the Bihu function together including Bhaskar. So, their evidence in respect of assault on Bhaskar by the accused persons are not to be discarded even then when there were certain minor discrepancies. There was a previous altercation between Bhaskar and one of the accused persons inside the Bihu pandal when the Bihu function was going on. Even though they were separated at that point of time through the intervention of other persons and Bihu committee members and the Bihu function restarted thereafter, the accused persons waited till the end of the Bihu function as they were aware of the fact that the members of the comedy group including Bhaskar would come out of the Bihu pandal for returning to their respective villages. Knowing that they would come to the place where their vehicles were parked the accused persons regrouped and waited near the place where the vehicles were parked. When Bhaskar and members of the group coming out of the Bihu pandal after the function was over, reached near their motorcycles the accused persons immediately attacked Bhaskar specifically on his head with bricks and also dealt him with kicks and fists. 30. As per the medical evidence, the deceased had received a contusion injury (Injury No. 1) over the head situated at the back side place and one lacerated injury (Injury No. 2) over the right arm on the back side. P.W. 12, the doctor opined that the injuries were consistent with blunt force impact. The doctor had found depressed fracture at the back side of the skull. The assault was in the night intervening 22.05.2005 and 23.05.2005 and the autopsy doctor examined the dead body of Bhaskar on 28.05.2005. Injuries which might have resulted from fists and kicks on the date of the assault might not have been discernible at the time of autopsy. The depressed fracture present at the back side of the skull was as a result of the contusion injury appeared to have been received by the blunt force impact. Injuries which might have resulted from fists and kicks on the date of the assault might not have been discernible at the time of autopsy. The depressed fracture present at the back side of the skull was as a result of the contusion injury appeared to have been received by the blunt force impact. As it has emerged that the accused persons had used bricks to assault the deceased, we find the medical evidence consistent with the ocular evidence mentioned above. 31. Then, the issue for consideration is as to what offence the accused had committed in the instant case and whether the case is covered under Section 302, Indian Penal Code. The act of the accused is culpable homicide amounting to murder, as per the findings of the learned trial court. From the definitions of culpable homicide and murder, as provided in Section 299 and 300 of the Indian Penal Code respectively, it is clear that there is distinction between culpable homicide and murder in the sense that a culpable homicide to be a murder, any one of the four situations mentioned in Section 300, Indian Penal Code must be present. To sustain the charge of murder, the prosecution is required under the law to bring the case under any of the four clauses of Section 300, even when none of the exceptions are pleaded. If the prosecution fails to discharge the onus in establishing any of those four clauses, the charge of murder would not be made out and it can at best come under Section 299, Indian Penal Code. In the case of Subhash Shamrao Pachunde -Vs- State of Maharashtra, (2006) 1 SCC 384 , it is observed that the distinction between the offences of culpable homicide and murder is the presence of special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These attitudes are stated in Section 300, Indian Penal Code as distinguishing murder from culpable homicide not amounting to murder. Similar are the observations made by the Hon'ble Courts in the decisions, Isub Ali -Vs- State of Tripura, (2007) 3 GauLT 962 and Mohinder Singh -Vs- State (Delhi Administration), (1985) CriLJ 1903 (SC), relied on for and on behalf of the accused-appellants. 32. Similar are the observations made by the Hon'ble Courts in the decisions, Isub Ali -Vs- State of Tripura, (2007) 3 GauLT 962 and Mohinder Singh -Vs- State (Delhi Administration), (1985) CriLJ 1903 (SC), relied on for and on behalf of the accused-appellants. 32. It has emerged from the evidence on record that the injuries were not sustained by the deceased from any sharp weapon. The accused persons had regrouped themselves after the previous altercation inside the Bihu pandal and waited for the deceased to arrive at the place where his motorcycle was parked. But the accused persons did not equip themselves, in the meantime, with any weapon while waiting there for the deceased but they used only bricks which might have been available at the spot. It, thus, appears that the intention of the accused persons was to teach the deceased a lesson for the previous altercation with them by giving him a beating by all of them together and they might have the knowledge that such physical assault by bricks on the deceased by four of them together might result in such bodily injury which likely to cause death. Had there been any intention to cause death the accused persons might have equipped themselves with such weapons which would have easily caused death on attack since they had ample time and opportunity in between the time period from the previous altercation to the actual assault. In the background of the fact situation obtaining in the present case and considering the manner in which the injuries were inflicted, it is hard to suppose that the accused persons intended to cause the offence of culpable homicide which would amount to murder. We are of the considered view that the physical attack was not aimed to cause his death or with any positive intention to make it fatal for the said victim and therefore, the case would also not fall under clause “thirdly” of Section 300, Indian Penal Code. But, at the same time, it can be inferred that the accused-appellants being youth, were imputed at least with the knowledge that with the kind of injury they had inflicted was likely to cause death. In our considered view, the accused-appellants ought to have been convicted under Section 304 Part-II, Indian Penal Code read with Section 34, Indian Penal Code instead of under Section 302, Indian Penal Code. 33. In our considered view, the accused-appellants ought to have been convicted under Section 304 Part-II, Indian Penal Code read with Section 34, Indian Penal Code instead of under Section 302, Indian Penal Code. 33. In respect of awarding of sentence, the Supreme Court in the case of Gurmukh Singh Vs. State of Haryana, (2009) 15 SCC 635 , has laid down certain factors in awarding appropriate sentence to the accused. Dealing with the same, it has observed as under:- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:- a. Motive or previous enmity; b. Whether the incident had taken place on the spur of the moment; c. The intention/knowledge of the accused while inflicting the blow or injury: d. Whether the death ensued instantaneously or the victim died after several days; e. The gravity, dimension and nature of injury; f. The age and general health condition of the accused; g. Whether the injury was caused without pre-meditation in a sudden fight; h. The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; i. The criminal background and adverse history of the accused; j. Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; k. Number of other criminal cases pending against the accused; l. Incident occurred within the family members or close relations; m. The conduct and behavior of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? 24. These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused received appropriate sentence, in other words, sentence should be according to the gravity of the offence. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused received appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 34. Considering the entire factual background and applying the settled principles of law which has been highlighted in the cases mentioned above, the proper and appropriate conviction, in our considered view, would be under Section 304 Part-II, Indian Penal Code and not under Section 302, Indian Penal Code. In that view of the matter, we deem it proper to convert the impugned conviction under Section 302, Indian Penal Code to one under Section 304 Part-II, Indian Penal Code. We, therefore, consider that in the aforesaid facts and circumstances of the case the interest of justice would be served if the sentence is converted to rigorous imprisonment of 7 (seven) years maintaining the fine imposed by the learned trial Court. 35. Accordingly, this appeal is partly allowed and the impugned judgment of conviction and sentence dated 14.11.2014 is modified to the extent above. 36. Before parting with the record, we feel that the parents of the deceased may be considered for victim compensation as per the scheme prepared by the State Government under Section 357A, Cr.P.C.. The amount notified as per the said scheme in case of death may be released to the surviving parent(s), if any, on proper identification by the Member- Secretary, Assam State Legal Services Authority expeditiously. This order may be brought to the notice of the Member-Secretary, Assam State Legal Services Authority. 37. Registry shall send down the trial Court records forthwith, along with a copy of this Judgment. Registry shall also send three copies of this Judgment to the accused appellants named above, free of cost, to be served through the Superintendent of Central Jail, Nagaon.