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2020 DIGILAW 103 (GAU)

Chutka Kahar v. State Of Assam

2020-01-31

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mrs. Reetujia Dutta, learned Amicus Curiae appearing for the appellant and Ms. S Jahan, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 29.09.2018 passed by the learned Sessions Judge, Nagaon in Sessions Case No.158(N)/2008, whereby the appellant was convicted under section 302/448/323 IPC and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation under section 302 IPC. The appellant was further sentenced to simple imprisonment for one year under section 448 IPC and fine of Rs.1,000/- in default to simple imprisonment for another one month and simple imprisonment for one year under section 323 IPC and fine of Rs.1000/- in default, to simple imprisonment for one month. 3. As per the prosecution case, on 05.09.2006 at about 9.30 pm the present appellant and his son Sanjay Kahar entered into the house of the informant at the instigation of one Akanmoni Das and assaulting Pw-1 Pushpa Prabha Bora. They also pressed the neck of the of the husband of Pushpa Prabha Bora and also dealt various hand and leg blows. The present appellant hit the victim with a piece of wooden batten causing serious injuries to the deceased. Pw-2 Mridusmita Devi lodged the FIR (Exhibit-1) on the basis of which police registered Raha PS Case No.110/2006 under sections 114/448/325/307/354/34 IPC and commenced investigation. During the course of investigation, the victim died and as such, the penal provision of section 302 IPC was added. In course of investigation police recorded the statement of the witnesses under section 161 Cr.P.C., prepared the inquest report, seized some incriminating articles and send the body for post-mortem examination and statement of some of the witnesses were also recorded under section 164 Cr.P.C. 4. Pw-12 Dr. Rith Raj Chaliha, who conducted the post-mortem examination found the following injuries on the body of the victim: 1. One stitched wound present on the scalp over the parietal bones. (Vault of the skull) sixe 8 cm in length and closed bty 9 Nos of stitches. The scalp around the stitch wound is contused. Unermeat parietal bone fracture (depressed comminuted fracture) extra dural and defused sub dural haemorrhage is present. Whole brain congested. 5. In the opinion of the autopsy doctor death was due to comma as a result of head injury which was ante-mortem, caused by blunt weapon and homicidal in nature. The scalp around the stitch wound is contused. Unermeat parietal bone fracture (depressed comminuted fracture) extra dural and defused sub dural haemorrhage is present. Whole brain congested. 5. In the opinion of the autopsy doctor death was due to comma as a result of head injury which was ante-mortem, caused by blunt weapon and homicidal in nature. Approx time since death 18 to 24 hours. 6. On conclusion of investigation, charge-sheet was laid against all the accused persons named in the FIR. As the ccase was triable by the Court of Sessions, learned Magistrate upon taking cognizance, committed the case to the Court of Sessions. Learned Sessions Judge framed charge under sections 448/323/302 IPC read with section 34 IPC against all the three accused persons, to which they pleaded not guilty. 7. During the course of trial twelve witnesses were examined by the prosecution in order to bring home the charges. The first witness examined by the prosecution is Pushpa Prabha Boras who also sustained injury in the occurrence. According to her, at about 8.30 -9.00 PM, the present appellant was hurling abuses at them from the road in front of their house and when she requested him not to create noise, the appellant rebuked her and also caught hold of her by her hair and also slapped her. As she raised alarm, her husband (victim) came out and at that point of time the appellant brought a wooden batten from his house and dealt a blow on the head of her husband (victim). It was elicited during cross-examination that there is a road in between the house of the appellant and the informant and the appellant was rebuking them from his own land. 8. Pw-2, the informant stated that when the accused/appellant was hurling abuses at them from the doorway of their house, Pw-1 aksed him not to rebuke them by using filthy language, whereupon, the appellant assaulted Pw-1. When her father (victim) came out and asked the appellant why he was creating noise, the accused/appellant dealt a blow on the backside of the head of the victim by means of a batten. She raised hue and cry, hearing which the neighbouring people assembled at the place of occurrence. 9. Pw-3 also stated in the same line that the accused and the victim are close neighbours. She raised hue and cry, hearing which the neighbouring people assembled at the place of occurrence. 9. Pw-3 also stated in the same line that the accused and the victim are close neighbours. According to him when the appellant came out of his house and uttered abusive language, the victim asked the appellant not to create nuisance as he was teaching his children. Pw-1 also asked him not to create noise. Then the appellant went inside his house, brought a wooden batten and dealt a blow on the head of the deceased. He further stated that when Pw-1 resisted she was also assaulted by the appellant. 10. Pw-4 stated that he had seen the appellant hurling abusive language to the victim Kamal Nath. When the victim protested the appellant brought a wooden batten from his house and dealt a blow on the hand of his wife Pushpa Prabha Bora with the batten at the courtyard. Thereafter the appellant also hit the victim with the said batten. 11. Pw-7 stated that hearing noise in front of the house of the victim, he came out and saw the appellant assaulting Pushpa Prabha Bora, wife of the victim. When the victim came to intervene, the appellant hit on the head of the victim by means of a wooden batten. 12. Pw-8 also stated to have seen the appellant assaulting Pushpa Prabha Bora, wife of the victim with a wooden lathi. According to him when the victim came out and send back his wife to the house and was leaving the place by saying, that he would talk to him on the following day, the appellant dealt a blow on the head of the victim with a wooden lathi. 13. Pw-9 Dr. Hemanga Das who examined Pushpa Prabha Bora (Pw-1) found swelling in the middle part of the left hand and abrasion in the middle part of the left forearm. Both the injuries were stated to be simple and caused by blunt object. 14. Pw-5 & Pw-6 were the witness to the seizure list (Exhibit-4) by which the police seized the wooden batten used in the commission of the offence. 15. Appreciating the above evidence, learned Sessions Judge convicted the present appellant under sections 302/323/448 IPC and awarded sentence as indicated above. However, the other two co-accused were acquitted by the learned Sessions Judge. Aggrieved, the appellant preferred the instant appeal. 16. 15. Appreciating the above evidence, learned Sessions Judge convicted the present appellant under sections 302/323/448 IPC and awarded sentence as indicated above. However, the other two co-accused were acquitted by the learned Sessions Judge. Aggrieved, the appellant preferred the instant appeal. 16. Learned Amicus Curiae contends that there were various contradictions in the oral testimony of the prosecution witnesses and as such, no reliance can be placed on the oral testimony of the prosecution witnesses. Learned Amicus Curiae further contends, that even if it is assumed that the appellant assaulted the victim which led to his death, there was no intention on the part of the appellant to cause death and as such, the appellant's conviction under section 302 IPC cannot be maintained. Learned Addl. PP, Assam, supporting the judgment impugned, submits that there were ample evidence on record to establish the involvement of the appellant in the commission of the offence and therefore, the impugned judgment calls for no interference. 17. That the victim died as a result of the injury sustained, has not been in dispute. In fact, the present appellant having inflicted the injury has also not been seriously contested by the learned Amicus Curiae. However, the contention of the learned Amicus Curiae as indicated above is that the conviction of the appellant could not be under section 302 IPC as there was no pre-meditation and intention to cause death on the part of the appellant. 18. On our assessment of the evidence as reproduced above, we find that the prosecution has been successful to establish that the accused/appellant was the perpetrator of the offence who inflicted the injury to the victim by hitting him with a batten which led to his death. Evidently, initially the accused person was rebuking the informant from his own land. It is also in the evidence that the house of the accused and the victim are in close proximity across the road. It is also in the evidence that while the appellant was rebuking the Pw-1, he did not have any arms in his hands and in course of the quarrel when the victim also came out from his house, he went inside his house and brought a batten, with which he dealt a single blow on the head of the victim. It is also in the evidence that while the appellant was rebuking the Pw-1, he did not have any arms in his hands and in course of the quarrel when the victim also came out from his house, he went inside his house and brought a batten, with which he dealt a single blow on the head of the victim. All these facts, that initially when the quarrel started, the accused was unarmed and in course of the quarrel he brought a wooden stick and dealt a single blow at the heat of passion causing injury to the victim which ultimately became fatal, speaks loud and clear, that there was no pre meditation or intention to cause death on the part of the appellant. The nature of injury and the weapon of offence also show, that the appellant neither took any undue advantage nor acted in cruel manner. Having regard to all these evidences, we are of the considered opinion that the conviction of the appellant could not have been recorded under section 302 IPC. 19. In view of the above facts and circumstances, we are of the considered opinion that the conviction and sentence of the appellant under section 302 IPC cannot be sustained. Accordingly, we set-aside the conviction and sentence of the appellant under section 302 IPC. Instead, we convict him under section 304 (Part-II) IPC. Having regard to the facts and circumstances under which the offence as committed, we are of the considered opinion that sentence of Rigorous imprisonment for 6 (six) years would serve the cause of justice. Accordingly, we sentence him to Rigorous Imprisonment for 6 (six) years and to pay a fine of Rs.10,000/- in default to simple imprisonment for 6 (six) months under section 304 (Part-II) IPC. We do not interfere with the sentence awarded for the offence under Section 323/448 IPC. All substantive sentences to run concurrently. The period already undergone by the appellant shall stand set-off. We, however, do not interfere with the order of the learned Sessions Judge pertaining to the compensation under section 357-A. 20. The appeal accordingly stands partly allowed. 21. Appreciating the assistance rendered by Ms. Reetujia Dutta, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Dutta. 22. The appeal accordingly stands partly allowed. 21. Appreciating the assistance rendered by Ms. Reetujia Dutta, learned Amicus Curiae, we hereby provide that she will be entitled to professional fees of Rs.7500/-. Upon production of a copy of this judgment, Guwahati High Court Legal Services Committee shall pay the fee to Ms. Dutta. 22. Send down the LCR along with a copy of this judgment.