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2019 DIGILAW 407 (GAU)

Nara Kanta Dutta v. State Of Assam

2019-04-02

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : Achintya Malla Bujor Barua, J. Heard Mr. G. C Phukan, learned counsel for the appellant and Ms. S Jahan, learned Additional Public Prosecutor appearing for the State of Assam. 2. This is an appeal against the judgment and order dated 17.06.2015 of the learned Sessions Judge, Udalguri, Assam passed in Sessions Case No.793(DU)/2013, whereby the accused/appellant was convicted and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.5000/- and in default, rigorous imprisonment for another 06(six) months for committing the offence under Section 302 of the Indian Penal Code (in short IPC). 3. The prosecution case in brief is that an ejahar dated 06.09.2013 was lodged by one Juri Devi before the Officer In Charge of Khairabari police station stating that when her elder sister Barnali Sarma had visisted the house of her younger sister Anjubala Devi, her brother- in-law at about 11 a.m. on 06.09.2013 had hacked her with a dao from behind. Upon being taken to the hospital, the elder sister died while under treatment. The postmortem report shows that there was a lacerated injury on the left lower chest in the back measuring 1½ inch long and the cause of the death is opined to be death due to shock and hemorrhage as a result of the injury sustained. 4. Palash Sarmah, who had deposed as PW-6, in his deposition stated that while he was having bath at around 11.30/12 O'clock on 06.09.2013, the accused, who was sleeping on the bed, went over to have his rice and told his wife that how will she understand the pleasure of earning one's own bread and butter. It is further deposed that thereafter the deceased had stated that she was assaulted. When the PW-6 went inside the kitchen, he saw that his elder sister was running out of the kitchen and the accused brother-in-law was proceeding inside the kitchen with a knife in his hand. He further deposed that he saw that there was a fresh cut on the backside of her sister and she was bleeding. PW-6 further deposed that he took his deceased elder sister to a room, where she lost her balance and thereafter also the accused brother-in-law again came rushing towards the deceased by holding a knife in his hand. He further deposed that he saw that there was a fresh cut on the backside of her sister and she was bleeding. PW-6 further deposed that he took his deceased elder sister to a room, where she lost her balance and thereafter also the accused brother-in-law again came rushing towards the deceased by holding a knife in his hand. It was also deposed that after the knife was taken away from the hand of the accused, he had stated that he had assaulted the deceased and he would also arrange for her treatment. Thereafter, the accused went out to bring a vehicle and the accused along with other people took the deceased to the Khairabari hospital. After the initial stitches were given on the injured part, the deceased was referred to the Mangaldoi Civil Hospital, where she died. The witness also deposed that he saw that the accused came chasing with a knife in his hand. 5. In the re-examination, PW-6 stated that at the time of the incident, the accused was in an inebriated condition and also reiterated that the accused had brought a vehicle to take the deceased to the hospital. 6. Without going to the other evidence that had been led, it can be clearly concluded from the evidence of the PW-6 Palash Sarmah, who was an eye witness that after inflicting the injury upon the deceased, the accused thought about giving treatment to the deceased for her recovery and also went and brought a vehicle to take her to the hospital for necessary treatment and he himself accompanied the deceased along with others for meeting of such treatment. 7. In Deepak -vs- State of Uttar Pradesh (now Uttarakhand), (2018) AIR SC 3568, the Supreme Court had the occasion to examine a factual situation which was similar to that of the present case. In the said case also, the accused was in an inebriated condition and the occurrence took place in the hit of the moment and the assault was made without any premeditation. Further, there was only a single assault by the accused and the accused had made no attempt to make any further assault. In such situation, the conviction was converted to that of Section 304 Part-II of the IPC. 8. Further, there was only a single assault by the accused and the accused had made no attempt to make any further assault. In such situation, the conviction was converted to that of Section 304 Part-II of the IPC. 8. In Kalu Ram -vs- State of Rajasthan, (2000) 10 SCC 324 , in paragraph-7, a similar situation was examined by the Supreme Court, wherein also the accused was in a highly inebriated condition and had approached the deceased with a demand to spare her ornaments made by him. When such demand of the accused was refused, he put kerosene and wanted the deceased to light the match stick. When the deceased did not do so, the accused ignited one matchstick, but when the flames were up, the accused suddenly and frantically poured water to save her from the flames. The Supreme Court was of the view that such conduct of the accused subsequent to the incident cannot be divorced from the totality of the circumstance. The Supreme Court was also of the view that all that the accused thought was to inflict some burns upon the deceased to frighten her, but the situation slipped out of his control and ultimately became fatal. In the circumstance, the subsequent conduct of the accused was taken to be a mitigating circumstance and the conviction was converted to Section 304 Part-II of the IPC from that of Section 302 IPC. 9. In the present case also, we find similarity in the circumstance and the subsequent conduct of the accused in respect of the injuries caused upon the deceased. There are materials to show that the accused was in an inebriated condition and the incident took place on the spur of the moment and immediately after the incident took place, it was the accused, who himself went out to bring a vehicle and took the deceased to the hospital, where he himself accompanied along with the other family members. We are not going into the other aspects of the evidence as the deposition of PW-6 is considered to be sufficient to arrive at our conclusion. 10. In view of the similarity of the circumstance, we are inclined to convert the conviction of the accused appellant to that of Section 304 Part-II IPC from that of Section 302 IPC. We are not going into the other aspects of the evidence as the deposition of PW-6 is considered to be sufficient to arrive at our conclusion. 10. In view of the similarity of the circumstance, we are inclined to convert the conviction of the accused appellant to that of Section 304 Part-II IPC from that of Section 302 IPC. It is stated that since the date of his arrest and upon being sentenced to an imprisonment for life, the accused/appellant has already undergone an imprisonment for a period from 07.09.2013. We are of the view that the appellant having already undergone the imprisonment for a period of approximately 05 (five) years 06 (six) months and 25 (twenty five) days, the same would be sufficient for him to be a sentence under Section 304 Part-II IPC. 11. Accordingly, while modifying the conviction of the accused appellant to that of Section 304 Part-II IPC, we release the accused/appellant forthwith by treating the period undergone to be the sentence imposed on the accused/appellant. It is ordered that the accused/appellant be released forthwith, if not required in any other offence. 12. The appeal is partly allowed. 13. Send back the LCR immediately.