High Court
Case Details
Crl.A. 96/2008 BEFORE THE HON’BLE MR. JUSTICE B.D. AGARWAL AND THE HON’BLE DR.(MRS.)JUSTICE INDIRA SHAH (B.D. Agarwal, J.) The judgment and order dated 08.02.2008, passed by the learned A dditional Sessions Judge (FTC), Lakhimpur, in Lakhimpur Sessions Case No. 20 (NL ) of 2007, is under challenge in this appeal. By this impugned judgment, the lea rned Additional Sessions Judge convicted as many as many as 9 (nine) accused per sons for the offences under Sections 147/341/302, read with Section 149 of the I ndian Penal Code, 1860, (hereinafter, in short, ’IPC’) and various sentences hav e been awarded. The maximum sentence is that of Life Imprisonment for the offenc e of murder. Being aggrieved with the conviction and sentence 5 (five) accused p ersons have preferred this appeal. It is not known whether the remaining convict s have preferred any appeal or not.
Legal Reasoning
6. We find that altogether 7 (seven) witnesses were examined to est ablish the aforesaid offence. PWs-3 and 5 are the sons of the deceased; PWs- 1, 2 and 4 are the co-villagers; PW-6 is the autopsy doctor ad PW-7 is the Investig ating Officer. 7. PW-3 was a minor son of the deceased at the relevant time and in his cross-examination, he has admitted that he was not allowed to see the dead body of his father. However, in the chief examination, he has narrated the entir e prosecution story about confinement of his father and physical assault by the appellants and other persons. PWs- 1, 2 and 4, appears to be the eye-witnesses. They have give 8. n corroborative evidence that getting the news of detention of the deceased they went to the place of occurrence and found that the accused persons were already man-handling another person from the Mising community. Thereafter, they jumped over the deceased and started giving fist blows and kicks at random suspecting h im to be engaged in witchcraft. All these eye-witnesses have named the appellant s as the assailants. Though there were more than 50 people at the place of occur rence but the witnesses could identify only the charge-sheeted accused persons. 9. they have falsely implicated the appellants. At the same time, no suggestion was given to the witnesses that 10. In their statements under Section 313 CrPC, the accused persons took total denial and no defence story was projected. Though some part of the in cident was not narrated before the Investigating Officer but the omissions are n ot fatal to give a clean chit to the appellants. 11. Now, the question is whether the conviction of the appellants un der Section 302 IPC should be maintained. We have already mentioned earlier that as per the ocular testimony of the witnesses the deceased was assaulted by givi ng fist blows and kicks. The Investigating Officer had also seized bamboo sticks from the place of occurrence. In this way, no sharp weapon or heavy blunt weapo n was used in the crime. The autopsy doctor also found only bruises and abrasion s on the dead body. In the cross-examination, the doctor has affirmed that the b ruises and abrasions are not sufficient to cause death. 12. In view of the above, the conviction of the appellants are conve rted from Sections 302/149 to Section 304 Part-II, read with Section 149 of the Indian Penal Code, 1860. Resultantly, the sentence is reduced to 10 (ten) years RI with fine of Rs. 1,000/- (Rupees One Thousand) and for non-payment of fine th e appellant shall undergo further RI for 2 (two) months. At the same time, we he reby affirm the convictions of the appellants under Sections 147 and 341 IPC as well as the fine of Rs. 1,000/- (Rupees One Thousand) and Rs. 500/- (Rupees Five Hundred), with default sentences, as awarded by the trial Court. With the aforesaid modification in the conviction, the appeal st 13. ands dismissed. On receipt of the LCRs, the learned Additional Sessions Judge sh all issue modified custody warrants. The Government of Assam is directed to pay compensation amount o 14. f Rs. 1,00,000/- (Rupees One Lac) to the family members of the victim, as provid ed under Section 357-A of the Code of Criminal Procedure, 1973, The Government s hall deposit the compensation amount in the Office of the learned Sessions Judge , Morigaon, within a period of 2 (two) months from the date of receipt of a copy of this order. On receipt of the money the same shall be disbursed to the famil y members of the deceased on proper identification and after obtaining proper re ceipt. The Registry is directed to return the LCRs with a copy of this 15. judgment. At the same time, the Registry shall forward a copy of this judgment t o the Chief Secretary, Government of Assam, for necessary action.
Arguments
2. We have heard Sri J Payeng, learned counsel appearing on behalf of the appellant as well as Sri N J Datta learned Additional Public Prosecutor f or the State of Assam. We have also perused the impugned Judgment and the eviden ce tendered by the prosecution in the trial Court. 3. The prosecution case is that on 16.03.2002, in between 8:00-9:00 pm, the deceased was returning home along with his son (PW-5) and few other per sons after attending a religious function in the village. On the way, he was det ained by the appellants and other persons. Thereafter, PW-5 came home and inform ed it to the family members of the deceased. Thereafter, all the family members visited the place of occurrence and found that they were physically assaulting t he deceased. The FIR was lodged by PW-3 on the same night. Narrating the afor 4. esaid story, the name of the co-accused, Sri Birbal Pangeng was specifically men tioned in the FIR. It was stated that the said accused was accompanied by other persons in the offence. 5. After the investigation, 10 (ten) persons were challaned for the aforesaid offences. However, before the trial could begin one of the co-accused , namely, Sri Nirmal Kardong died and, as such, only 9 (nine) accused persons we re tried and they have been convicted.