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2020 DIGILAW 328 (GAU)

Sunanda Das@sunendra Das v. State Of Assam

2020-03-03

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. D. Talukdar, learned counsel for the appellant and Mr. M.P. Goswami, learned Addl. P.P., Assam for the respondent. 2. This appeal is directed against the judgment and order dated 26.05.2010, passed by the learned Sessions Judge, Kamrup, in Sessions Case No. 57(K)/2007. By the said judgment, the learned Sessions Judge convicted the appellant under Section 304 Part-I/325 IPC and sentenced him to imprisonment for 10 years and fine of Rs. 5,000/- with default stipulation under Section 304 Part-I IPC. The appellant was further sentenced to imprisonment for three years and fine of Rs. 2,000/- with default stipulation under Section 325 IPC. 3. As per the prosecution case, Bhupen Hazarika and Nabin Hazarika were residing in the rented house and uncle of the appellant was their landlord. On 08.07.2004, at about 2 O''clock in the afternoon, the appellant Sunanda Das came to the rented premises and inflicted injuries to Bhupen Hazarika and Nabin Hazarika by hitting them with a dao. One Ranjit Saikia, who happens to be a friend of Bhupen Hazarika and Nabin Hazarika lodged the FIR, on the basis of which, Dispur P.S. Case No. 598/2004 was registered under Section 448/326 IPC. During investigation, the injured Nabin Hazarika died and as such the penal provision of Section 302 IPC was added. After death of the victim, Nabin Hazarika, inquest was done and the body was subjected to postmortem examination. The PW-8, Dr. Kanak Chandra Das conducted the postmortem examination on the body of the victim Nabin Hazarika and found the following injuries: wxyz "1. One partially healed stitched would present on left cheek and territorial area, size10 cm long, oblique and closed by 10 Nos. of stitches underneath temporal bone of the skull cut obliquely. 2. Membrances and temporal lobe of the brain cut partially. Extra dural hemorrhage print over the left temporal lobe of the brain. Diffused subdural hemorrhage print all over the brain. Other parts of the brain congested. zyxw wxyz 3. Other organs are healthy." In the opinion of the doctor, the death was caused due to cut injury, which was caused by sharp cutting weapon and the injury was antemortem and homicidal in nature. zyxw 4. On completion of the investigation, charge sheet was laid against the appellant under Section 302/325 IPC. 5. zyxw wxyz 3. Other organs are healthy." In the opinion of the doctor, the death was caused due to cut injury, which was caused by sharp cutting weapon and the injury was antemortem and homicidal in nature. zyxw 4. On completion of the investigation, charge sheet was laid against the appellant under Section 302/325 IPC. 5. During trial, learned Sessions Judge framed charges against the appellant under Section 448/325/302 IPC, to which he pleaded not guilty. Eleven (11) witnesses were examined by the prosecution in order to bring the charges and on appreciation of evidence, learned Sessions Judge convicted the appellant under Section 304 Part-I IPC as well as Section 325 IPC and awarded sentence as indicated above. 6. Learned counsel for the appellant submits that though prosecution evidence could establish the offence of causing grievous hurt to the injured under Section 325 IPC, the evidence adduced was not sufficient to establish the charge under Section 304 Part-I IPC beyond reasonable doubt. 7. Learned Addl. P.P. supporting the conviction and sentence submits that the evidence brought on record was sufficient to bring home the charges calling for no interference with the impugned judgment of conviction and sentence. 8. I have considered the submissions of the learned counsel for the parties and also scrutinized the evidence brought on record. 9. The injured Bhupen Hazarika has been examined as PW-9. He deposed that on the relevant day, he and the deceased Nabin Hazarika were in the rented house, where a quarrel ensued between him and the accused on the question of payment of rent. It was also stated that the accused was also staying in one room in the same premises. Initially, the accused call him to his room, but he did not go, rather he called the accused to his room and accordingly when the accused came to his room, quarrel started between them for non-payment of rent and in course of quarrel, the accused gave him a blow. He also retaliated by another blow, but suddenly the accused rushed to his house and came back with a dao and dealt a dao blow on one side of his head. At that time his brother (deceased) was also sitting in the room and the accused also gave a dao blow to the deceased Nabin Hazarika and thereafter he had fled away from the room. At that time his brother (deceased) was also sitting in the room and the accused also gave a dao blow to the deceased Nabin Hazarika and thereafter he had fled away from the room. He further stated that both of them were treated in the GNRC hospital and after four days of treatment, Nabin Hazarika died. During cross examination, it was confirmed that quarrel started for non-payment of rent and in course of quarrel, both the parties became excited and in course of quarrel, the accused went to his room and having came back with the dao inflicted the injuries to him. He further stated that as he had fled away from the place of occurrence, he could not say as to how his elder brother, (deceased) sustained the injury. 10. Pw-4, who came to the place of occurrence immediately after the occurrence, deposed that having heard the injured Bhupen Hazarika calling his brother Sonu, he came out of the house and found the PW-9 Bhupen Hazarika with injury on his head. On being asked by him, he could not utter anything. When he tried to shift him to hospital, PW-9 told him to save his brother, who was in the house. Immediately, he (PW-4) ran to the rented house of PW-9 and found the victim Nabin Hazarika lying on the veranda with injury. On being asked by him, as to who inflicted the injury, he could not say anything. He also stated, that later on he came to know from PW-9 that the victim was assaulted by the appellant. However, his previous statement recorded under Section 161 CrPC, which was confronted to him and confirmed through the Investigating Officer (PW-11) shows, that he did not state before police regarding the PW-9 telling him that the accused inflicted the injury to the victim. 11. Pw-7, the wife of the appellant deposed that he had seen her husband going to the house of Bhupen and heard altercation among them. She also stated to have heard the scream of her husband, saying ''Basao-Basao''. Immediately she came out and saw that her husband was running away. The PW-1, PW-2 & PW-3 pleaded ignorance about the occurrence. The PW-5 & PW-6 stated that on being called by the tenant Bhupen, the accused went to the house of Bhupen Hazarika and thereafter they heard the scream of the accused. Immediately she came out and saw that her husband was running away. The PW-1, PW-2 & PW-3 pleaded ignorance about the occurrence. The PW-5 & PW-6 stated that on being called by the tenant Bhupen, the accused went to the house of Bhupen Hazarika and thereafter they heard the scream of the accused. When they came out, they did not see any one there. 12. Pw-10, Dr. Bimal Kalita, who attended the PW-9 deposed that the PW-9 was hospitalized because of sustaining grievous injury and he was treated till 16.07.2004. He also proved the injury report as Ext. 7. The Ext.7, the injury report of PW-9 shows that he had a linear fracture of the left parietal bone with small bone fragments embedded in the underlying brain, which is associated haematoma with fronto-parietal aeroceles. He also found fractures of the left maxillary sinus and zygomatic process. 13. Scrutiny of the above oral testimony transpires that except, PW-9, who also sustained injury, there was no other eye witness. It is in the evidence of PW-9, that initially quarrel started with the accused for non-payment of rent and both the parties assaulted each other at the heat of passion and in course of such quarrel, the accused rushed to his house and came back with a dao and inflicted injury. The oral testimony of the PW-9 that he sustained injury also finds support from the medical evidence as well as the oral testimony of PW-4, who arrived the place of occurrence immediately and noticed the injury. In fact, the PW-9 having sustained injury has not been challenged by the learned counsel for the appellant. The only question raised in this appeal as to who inflicted the injury to the victim leading to his death. Although, the PW-9 stated in his evidence-in-chief that it was the accused who inflicted the injury, in his cross examination he stated that he had not seen as to who inflicted the injury to the victim. 14. From the evidence of PW-9 & PW-4 as well as the oral testimony of PW-5 & PW-6, it is evident that there was quarrel and mutual fight between the accused and the victim and PW-9 and in course of such quarrel, both the PW-9 and the victim sustained injury. Evidently, the victim also sustained a single injury, which ultimately became fatal and died after four days. Evidently, the victim also sustained a single injury, which ultimately became fatal and died after four days. During cross examination, the doctor stated, that had the victim been rendered with better treatment, there was possibility of his survival. 15. What emerges from the oral testimony of the PW-9 as well as PW-4, is that there was no direct evidence as to who inflicted injury to the victim Nabin Hazarika. Evidently, he also sustained a single injury in course of quarrel among the three. The PW-9 though initially stated that he had seen the accused dealing blow to Nabin Hazarika, in cross, he denied the same and stated that he did not see as to who inflicted the injury to the victim. 16. In view of the above facts and circumstances, when there were three persons and initially quarrel ensued among the three, it would be difficult to arrive at a conclusion, in absence of any reliable evidence, that the appellant inflicted injury to the victim. Though, there might be a probability of the injury to the victim being be caused by the appellant, mere probability is not sufficient to hold the appellant guilty of inflicting injury to the victim, inasmuch as, the probability cannot take the place of proof beyond doubt. 17. In the above facts and circumstances, in my considered view, the evidence brought on record was insufficient to come to a definite conclusion that appellant inflicted the injury to the victim, which led to his death, inasmuch as, the possibility of the victim not being assaulted by the appellant also cannot be ruled out. In the above facts and circumstances, it would not be safe in my considered opinion to saddle the responsibility on the appellant for the injury caused to the victim Nabin Hazarika and as such, the appellant atleast is entitled to the benefit of doubt so far the injury inflicted to the victim Nabin Hazarika is concerned. Therefore, regard being had to the facts and circumstances under which the victim Nabin sustained injury, I am unable to concur with the finding of the learned Sessions Judge that the injury to the victim causing his death was caused by the accused. Therefore, regard being had to the facts and circumstances under which the victim Nabin sustained injury, I am unable to concur with the finding of the learned Sessions Judge that the injury to the victim causing his death was caused by the accused. However, so far the injury inflicted to the PW-9 is concerned, evidence on record proved beyond reasonable doubt that the accused/appellant caused grievous hurt to the PW-9 and as such, the finding of the learned trial court holding the appellant guilty under Section 325 IPC for causing grievous hurt to the PW-9 warrants no interference. Accordingly, the conviction and sentence under Section 304 Part-I IPC is set aside and his conviction under Section 325 IPC is confirmed and upheld. 18. It appears from the record that the appellant has been in custody almost for three years. Therefore, in my considered view, the period which the appellant has already undergone in custody during investigation, trial and after conviction shall meet the ends of justice so far the charge under Section 325 IPC is concerned. Accordingly, the appellant is sentenced to imprisonment for the period which he has already undergone under Section 325 IPC. The quantum of sentence as awarded by the learned trial court in default for payment of fine requires no interference. Accordingly, the appellant is directed to appear before the learned trial court within two months to pay the fine of Rs. 2000/- or to serve out the default sentence. 19. Accordingly, the appeal stands partly allowed to the extent as indicated above. 20. Send back the LCR.