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2020 DIGILAW 92 (GAU)

Hemanta Ray v. State Of Assam

2020-01-28

MIR ALFAZ ALI, S.HUKATO SWU

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. HRA Choudhury, learned senior counsel assisted by Mr. A Ahmed, learned counsel appearing for the appellant and Mr. BJ Dutta, learned Addl. Public Prosecutor, Assam. 2. This appeal is directed against the judgment and order dated 30.08.2018 passed by the learned Sessions Judge, Dhubri in Sessions Case No.153/2017, whereby the appellant was convicted under section 302 IPC and sentenced to imprisonment for life and fine of Rs.10,000/- with default stipulation. 3. As per the prosecution case, on 19.07.2014 at about 10 am when the victim was erecting a fencing on the land belonging to him, the present appellant and his father obstructed the victim. When the victim defied their obstruction and continued to erect the fencing, he was knocked down to the ground and was strangulated to death. 4. Pw-2, the wife of the deceased lodged the FIR, Exhibit-5, on the basis of which police registered Agomoni PS Case No.180/2014 under sections 302/34 IPC and commenced investigation. In course of investigation police recorded the statement of the witnesses under section 161 Cr.P.C., prepared the inquest report and sent the body for post-mortem examination. 5. Pw-8 Dr. Nabajit Barman who conducted the post-mortem examination found the following injuries on the body of the victim: 1. One crescentic scratch abrasion of size 1 0.5 cm present over the right side of neck, one over below the right angle of mandible and 3.5 cm right to the middle. 2. One oval shaped contusioin of size 2 1.5 cm present over te right side of the neck. 3. Three linear abrasion of size 0.5 0.2 cm present over the left side of neck, one below the left angle of mandible. 4. Three contusion of size 1.5 1 cm present over the left side of neck. 5. Two incised wound of sized 2 0.5 cm present over the right palm (muscle deep). 6. One incised wound of sized 2 0.5 c, present over the left thumb (muscle deep). 7. Ligature mark nik. On dissection contused haemorrhagic area present over both side of neck. Fracture of thyroid cartilage hyoid bone, canynged cartilage present. Tear of intima of carotid seen on both sides. 8. Hypostasis present on back and is not fixed. 9. Dibbling of saliva seen through left angle of mouth. 6. 7. Ligature mark nik. On dissection contused haemorrhagic area present over both side of neck. Fracture of thyroid cartilage hyoid bone, canynged cartilage present. Tear of intima of carotid seen on both sides. 8. Hypostasis present on back and is not fixed. 9. Dibbling of saliva seen through left angle of mouth. 6. In the opinion of the autopsy doctor death was due to asphyxia resulting from ante mortem manual strangulation which was homicidal in nature and death was within 12-24 hours from the time of examination. On conclusion of investigation, charge-sheet was laid against both the accused persons named in the FIR. Upon taking cognizance, learned JMFC committed the case to the Court of Sessions. Learned Sessions Judge framed charge under section 302 IPC read with section 34 IPC against both the accused persons including the present appellant which was abjured by them. 7. During trial eight witnesses were examined by the prosecution to establish the charge. The learned Court also examined one witness as Court witness. On appreciation of evidence, learned Sessions judge convicted the appellant under section 302 IPC and awarded sentence as indicated above. The other co-accused was acquitted. 8. Aggrieved, the appellant preferred the instant appeal. 9. Learned counsel for the appellant submits that the prosecution case rests on the sole testimony of Pw-2, the informant, who cannot be held to be fully reliable witness and as such, no conviction can be based on the sole testimony of Pw-2 in absence of corroborating evidence and as such, the impugned judgment of conviction and sentence warrants interference. Supporting the conviction and sentence learned Addl. PP, Assam Mr. Dutta contends that the testimony of Pw-2, the eye witness finds support from the other evidence including the medical evidence which clearly establish the guilt of the appellant and as such, impugned judgment and order calls for no interference. 10. We have considered the submission made by the learned counsel and also scrutinised the evidence and materials brought on record. 11. On our assessment of the evidence, we find that there was no other eye witness of the occurrence except Pw-2, who was the wife of the deceased. Pw-2 testified that at about 10.00 am when her husband was repairing the bamboo fencing on their land, both the accused persons restrained her husband from repairing the fencing. 11. On our assessment of the evidence, we find that there was no other eye witness of the occurrence except Pw-2, who was the wife of the deceased. Pw-2 testified that at about 10.00 am when her husband was repairing the bamboo fencing on their land, both the accused persons restrained her husband from repairing the fencing. However, the victim continued with his work, whereupon the accused Binod Ray caught hold of the victim and the present appellant pressed his neck. Immediately she arrived on the spot and tried to save her husband but he died. She also stated that the age of her husband was 80 years at the time of occurrence. During cross-examination it was elicited that she raised alarm after the occurrence and some people came there, however, she did not disclose anything to them. 12. The testimony of Pw-1 & Pw-3 appears to be hearsay as they only heard about the quarrel between the victim and the appellant. 13. Pw-4, Pw-5 & Pw-6 were declared hostile. Though the testimony of the hostile witnesses are not required to be brushed aside merely because of their declaring hostile by the prosecution, we find nothing in their evidence which can be of any assistance to the prosecution case. Even their previous statement, which was sought to be proved to show, that they were hostile to the prosecution also suggested that they were the post occurrence witnesses. Situated thus, the entire prosecution case is banking upon the oral testimony of Pw-2 & Pw-8. 14. Learned counsel for the appellant as indicated above contends that Pw-2 tried to falsely implicate the father of the present appellant who was acquitted by the learned trial Court. Learned counsel further contends that there was a GD Entry before lodging the FIR, wherein only the present appellant was implicated which suggested that Pw-2 did not tell the full truth before the Court. Though, Pw-2 tried to implicate the father of the present appellant, who was exonerated by the learned trial Court, that cannot be a ground for rejecting the entire evidence of the Pw-2, who was undisputedly a natural witness, reason being that her presence at the place of occurrence and witnessing the occurrence was not disputed. This apart, her evidence, that when the victim was erecting fencing, the appellant resisted him and pressed his neck, remained totally unshaken. This apart, her evidence, that when the victim was erecting fencing, the appellant resisted him and pressed his neck, remained totally unshaken. Since the doctrine of Falsus in uno, falsus in omnibus is not applied in India, there is no reason for discarding the entire evidence of the Pw-2 because of her testimony, implicating the father of the appellant having found to be unbelievable. Evidently the occurrence took place due to land dispute between the two brothers. It is quite natural, that in case of dispute between the close relations there is always a tendency in our society to make an attempt to rope in every one in the family to teach them a lesion. However, it is the duty of the Court to find out the grain from the chaps, which was done by the learned trial Court, while acquitting the father of the appellant and convicting the present appellant. The evidence of Pw-2, that in course of quarrel relating to boundary of the land, the appellant pressed the neck of the victim an old man of 80 years, when he defied their resistance and continued with his work of erecting the fencing, remain unshaken. 15. The medical evidence of the doctor and the post-mortem report clearly corroborated the evidence of the Pw-2 as to the cause of death as well as the injury sustained by the victim. Thus the evidence of Pw-2, coupled with the medical evidence which fully supported the oral testimony of Pw-2, clearly established that it was the present appellant who had caused the death of the deceased by strangulation. 16. We also take note of the fact, that the appellant is the nephew of the victim and the quarrel initially started on the question of erecting fencing on the land, which the informant claimed to be their own. Evidently when the victim was erecting fencing the appellant resisted and the victim defying their resistance continued with the work of erecting fencing, whereupon there was quarrel. The oral testimony of the Pw-2 and the nature of injuries sustained by the victim clearly suggested, that there was a scuffle between the accused and the victim, who was an old man of 80 years and in course of such scuffle the appellant got over the victim and pressed his neck, which ultimately became fatal causing his death. 17. The oral testimony of the Pw-2 and the nature of injuries sustained by the victim clearly suggested, that there was a scuffle between the accused and the victim, who was an old man of 80 years and in course of such scuffle the appellant got over the victim and pressed his neck, which ultimately became fatal causing his death. 17. In view of the above facts and circumstances, we are of the considered opinion, that there was no pre-meditation on the part of the appellant to kill the victim being the elder brother of his father. When evidently there was sudden quarrel and scuffle and in course of such scuffle, the appellant pressed the neck of the victim, which caused his death and there was also no materials to show that the appellant took any undue advantage or acted in a cruel or unusual manner, the act of the appellant in our considered opinion would come within the sweep of the exception 4 of Section 300 IPC and as such, conviction of the appellant under section 302 IPC cannot be sustained. Therefore, we set-aside the conviction and sentence of the appellant under section 302 IPC. Instead, we convict him under section 304 (Part-I) IPC. 18. Having considered the facts and circumstances of case, under which the offence was committed we are of the considered opinion that the sentence for the period of 10 years would meet the ends of justice. Accordingly, we sentence him to Rigorous Imprisonment for 10 years and fine of Rs.10,000/- in default to simple imprisonment for 6 months. 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. 19. The appeal accordingly stands partly allowed. 20. Send down the LCR along with a copy of this judgment.