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2019 DIGILAW 617 (GAU)

Debu Ganju v. State of Assam

2019-05-17

ACHINTYA MALLA BUJOR BARUA, MIR ALFAZ ALI

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JUDGMENT : Achintya Malla Bujor Barua, J. 1. Heard Mr. R. De, learned amicus curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned Additional Public Prosecutor, Assam for the State. 2. Office note of 10-04-2019 shows that the informant/respondent No.2 had been duly served as per Flag -X. 3. An ejahar dated 14-11-2012 was lodged by one Raghu Ganju (Bhitika) before the Officer-in-Charge of Halwating Police Station alleging that, on 14-11-2012 at about 3 p.m., his younger brother Debu Ganju had shoved his father Kashiram Ganju from the railway bridge, whereupon his father fell down about 20 ft. below the bridge. It is alleged that the accused once again went down and hit his father on his chest with a boulder and thereby caused his death. Accordingly, the accused/appellant was charged under Section 302 of the Indian penal Code for having committed the murder by intentionally causing death of his father Kashi Ram Ganju. 4. PW-1, in his deposition, stated that at the time when the incident took place at about 3 p.m. on the given day, he was sleeping and having heard a hue and cry, his wife woke him up and asked him to enquire. When he rushed out of his house, he found a huge crowd near the bridge, which had a railway line and saw the body of the deceased lying there. When the villagers questioned the accused, the accused Debu Ganju had confessed about the killing of Kashi Ram Ganju, who was his father. 5. PW-2 in his in his deposition, stated that he had gone to work around the time when the incident took place and there was a hue and cry in the village that the victim had died as because the accused Debu Ganju had thrown him down from the railway bridge and thereafter struck him with a stone till he died. The witness further deposed that the accused had confessed before him about the killing. Thereafter the accused climbed up a tree and tried to commit suicide by hanging himself. 6. PW-4 stated that when the incident happened, he had gone to attend the field along with PW-5 Jetuki Ganju, where on his return he saw that the accused Debu had thrown the deceased from the railway bridge. Thereafter the accused climbed up a tree and tried to commit suicide by hanging himself. 6. PW-4 stated that when the incident happened, he had gone to attend the field along with PW-5 Jetuki Ganju, where on his return he saw that the accused Debu had thrown the deceased from the railway bridge. PW- 5 Jetuki Ganju states that at the time of occurrence, she had gone to the field along with PW-4 and while returning and crossing the railway bridge, she had seen the accused throwing the deceased from the bridge. But in cross, PW-5 stated that she had not seen the incident. 7. PW-10 in his evidence had stated that Debu and Kashi Ram had a fight and due to Debus shoving, Kashi Ram fell from the bridge which was at a height of 15 ft. and then Debu went down and hit his father on his chest with a boulder. In cross, this witness stated that he saw them fighting and also saw the accused throwing the deceased. But the evidence of accused hitting the deceased with a boulder was not reiterated. 8. The medical evidence shows certain injuries around the thorax region with intra mascular hemorrhage and anterior chest wall and pericardium was torn anteriorally about 1 inch and lacerated, blood found in pericardial sack and the heart had an one inch lacerated tear over anterior surface of right ventricle. 9. In the opinion of the doctor, the deceased died of syncope due to the injuries sustained to the heart. A further opinion was rendered by PW-7, Dr. Suatak Hussain that the injuries could also have been caused if one fell down with sufficient impact, but the external injuries by themselves were not enough to cause the death. 10. Under section 313 Cr.P.C. the accused had stated as follows :- "Ans:- Yes I have killed Kashiram. He was my father. I had thrown him from the bridge and then throw stone at him. I had found him drunk and lying on the bridge. Yes I had then tried to commit suicide." 11. Even if we accept the extra-judicial confession stated to have been made before PW-1 and PW-2, the evidence of PW-4 and PW- 10, which states that it is the accused, who had pushed the deceased from the railway bridge, which is stated to be at a height of 15 ft. Yes I had then tried to commit suicide." 11. Even if we accept the extra-judicial confession stated to have been made before PW-1 and PW-2, the evidence of PW-4 and PW- 10, which states that it is the accused, who had pushed the deceased from the railway bridge, which is stated to be at a height of 15 ft. as well as the statement of the accused under section 313 Cr.P.C., where he admits that he had pushed the deceased from the bridge and threw a stone at him, the act which was done by the accused amounts to a simple injury being caused to the deceased and the deceased did not die because of such injury. As per the medical evidence, we again take note of that the deceased died because of syncope due to the injuries to the heart and that the external injuries by themselves are not enough to cause death. We have also taken note that no grievous hurt was suffered by the deceased and there is no evidence of use of any dangerous weapon. We have also considered that the evidence on record does not show the existence of any material, which may lead us to conclude that the accused had caused the death of the deceased 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 to cause death by such act. Accordingly, as no culpable homicide is discernible and all that the accused had done was to inflict certain injuries on the deceased by pushing him from the railway bridge, because of which we are of the view that the accused would be guilty of committing an offence under section 323 of the Indian Penal Code. 12. We find that the accused is in prison since 14-11-2012, i.e. almost 6 years, whereas the maximum punishment for an offence under section 323 of the Indian Penal Code is one year. Accordingly, the conviction of the accused/appellant under Section 302 of the Indian Penal Code as per the judgment and order dated 02-05-2016 of the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 120(S-S)/2013 corresponding to Simaluguri GRPS PS Case No. 15/2012 and sentencing him to rigorous imprisonment for life with a fine of Rs. Accordingly, the conviction of the accused/appellant under Section 302 of the Indian Penal Code as per the judgment and order dated 02-05-2016 of the learned Additional Sessions Judge, Sivasagar in Sessions Case No. 120(S-S)/2013 corresponding to Simaluguri GRPS PS Case No. 15/2012 and sentencing him to rigorous imprisonment for life with a fine of Rs. 5,000/-, in default thereof, further simple imprisonment of 6 (six) months is set aside. Accordingly, we convict the accused/appellant Debu Ganju under Section 323 of the Indian Penal Code and as he has already served a sentence of almost 6 years, where the maximum punishment is one year, he be set at liberty forthwith, subject to being not required with any other offence. 13. The appeal stands allowed to the extent indicated above. 14. Appreciating the assistance rendered by Mr. R. De, learned Amicus Curiae, we hereby provide that he will be paid Rs. 7500/- as his professional fees. Upon production of a copy of this judgment, the Gauhati High Court Legal Services Committee, Guwahati shall pay the said fee to Mr. R. De. 15. Send back the LCR.