High Court
Case Details
Crl.A. 109/2012 BEFORE HON’BLE DR.(MRS) JUSTICE INDIRA SHAH This appeal has been preferred against the judgment and order dated 5th January, 2012 passed by the learned Sessions Judge, in Sessions Case No. 31/2007 convict ing the appellant under section 342 and 324 IPC. The appellant was sentenced to undergo imprisonment for 2 years with a fine of Rs. 1000, in default, simple imp risonment for 3 months for his conviction under section 324 IPC and also to unde rgo simple imprisonment for 6 months with fine of Rs. 5,000 for the offence comm itted by him under section 342 IPC. Both the sentences were to run concurrently . 2. r. BJ Dutta, learned Addl. PP.
Legal Reasoning
Heard Mr. BC Choudhury, learned counsel for the petitioner and M 3. The prosecution case, in brief, is that on 20th August, 2013 Ana ndaram Burhagohain lodged an FIR stating that on 19th August, 2005 at around 10 pm his brother Purnanda Buragohain fell ill. He was shifted to Nakhola Civil Ho spital at Jagiroad where he was declared dead. It was suspected that the death might have occurred due to consumption of poisonous substances. On the basis of the said FIR unnatural death case being UD Case No.20/2005 dated 20th August, 2 005 was registered. Subsequently, the said informant on 19th August, 2005 lodge d another ejahar wherein he alleged that he came to know that the accused Jintu Orang was wrongfully confined and was also assaulted by the accused. On the bas is of the subsequent ejahar, Jagiroad Police Station Case No.152/2005 under sect ion 342/302 IPC was registered and on completion of the investigation, police su bmitted the charge-sheet under section 342/302 IPC against the accused (Jintu Or ang). The accused pleaded not guilty of the charges framed against him under Se ction 342 and 302 IPC and claimed to be tried. Altogether 7 witnesses were examined by the prosecution. 4 witn 4. esses were summoned by the court and they were examined as court witnesses. The Learned Trial Court on conclusion of trial acquitted the accused from the charg e under Section 302 IPC but held them guilty under Section 342 and 324 IPC. The accused were accordingly convicted and sentenced as stated earlier. 5. Anandaram Burhagohain (PW-1) who lodged the FIR is a reported wi tness. He received a phone call from his neighbour Ratan Sarkar that Purnananda is in serious condition. He came to know that the accused Jintu Orang had conf ined his brother in his house and allegedly assaulted him. when the victim died he lodged the FIR. Information was given to him by one Narayan Deb. PW-2 Sikh a Neogi is also a reported witness. She saw that the victim was in the house pr emises of Minu Bordoloi when she visited the house of Minu. She found Minu as w ell as Purnananda Burhagohain sitting in the verandah of Jintu Orang (accused). She also noticed swelling on the face of Purnananda and there was bleeding from his nose. According to her, the victim was assaulted by the accused Jintu Oran g, his mother as well as his sister. As they were being assaulted, Ratan inform ed the police and on arrival of the police Purnananda fled away. Next day she c ame to know that Purnananda has expired. PW-3 Kartik Neogi was informed Payal N eogi (CW-1) that the accused had confined one boy and the boy was assaulted in h is home. 6. PW-4, Minu Bordoloi is the eye witness. She deposed that on the date of occurrence at around 4 pm Purnanda came to her house on his bicycle. H e kept his bicycle in the house premises and then the accused Jintu Orang took a way his cycle. Thereafter, Purnananda went to the house of Jintu Orang to bring his bicycle where he was assaulted by the accused with fists and blows. The ac cused pulled the victim from home and again he assaulted in the verandah then th e victim was taken inside the house of the accused and there he was assaulted by means of a lathi PW-4 sent Payal who inform her father and thereafter Sikha cam e from her shop. PW-4 along with Sikha went to the house of the accused and they saw the accused assaulting the victim Purnananda. The accused came to see Purn ananda. She noticed bleeding from his nose. PW-4, further alleged that she was asked to stay inside the premises of the accused. When the gate was opened, sh e along with Purnananda came out. Thereafter, Sikha again went to collect the b icycle from the house of Jintu. But, Jintu did not allow her to take the bicycl e. Sikha along with her elder brother Purnananda again went to the house of the accused to bring the bicycle. He was again assaulted by the accused. When the police arrived, the deceased Purnananda and Jintu duo fled away from the place of occurrence. According to her, Jintu used fist and blows and he also kicked t he victim. PW-5 Dr. Someswar Deoraja held post-mortem examination on the de 7. ad body of Purnananda on 20th August, 2005 and his findings were recorded asbelo w:- • lf open, Rogormortis present. • he lower eyelid, size 1/2 (cid:29) X 1/4 (cid:29). • t. • • • • nature. Small intestine and its content- gas and facial matters. Large intestine and its contents- gas and facial matters. Other organs healthy. More detailed description of injury or disease-injury is ante-mortem in One lacerated wound present on face (left side) about two inches below t A dead body of a male person lying in PM hall, eyes are closed, mouth ha Stomach and its content- gas and partially digested food particle presen 8. The doctor could not ascertain the actual cause of the death of the deceased. So, part of liver, stomach and its content and part of kidney wer e preserved and sent for chemical analysis to forensic laboratory examination. As after post-mortem examination the cause of death could not be ascertained, as such, the vicera was sent to FSL, Assam, Guwahati for ascertaining the cause of death, but the FSL report was also not clear and decisive. He issued exhibit-6 stating that the death might be natural due to acute cardiac respiratory failure . He stated that he did not find any external and internal injury mark over the dead body. 9. PW-7 investigated unnatural death case and on receipt of the FSL report he submitted the final report. 10. PW-1 Payal Neogi, deposed that she noticed from her verandah tha t the accused Jintu took one bicycle to his house and assaulted the deceased. S he reported the incident to her mother. She further stated that the residential house of the accused is visible from the verandah of her house. The accused ha d taken one bicycle of a person whom she called mama. She further stated that t he accused assaulted the said mama on the road also. 11. PW-2 and PW-4 are the reported witness. From the evidence of PW -4 as well as CW-1 it transpires that the victim was assaulted by the accused by means of fists and blows. The cause of his death was not due to any injury sus tained by him. The trial court held that the accused voluntarily caused hurt to the victim and convicted him under Section 324 IPC. A person can be convicted under Section 324 IPC only when he cause voluntary hurt to any person by any ins trument of cutting, stabbing etc. for causing hurt by means of fists and blows there cannot be any conviction under Section 324 IPC. The accused inflicted in jury by means of fist and blows. Injury sustained by the victim was simple in n ature. Therefore, the accused was liable to be convicted under Section 323 IPC. While maintaining conviction under section 342, under section 32 4 IPC is here by set-aside. The accused is convicted under section 323 IPC. It is submitted that the accused had already undergone imprisonment for more than 1 year. Therefore, the sentence of imprisonment under section 323 IPC is reduce d to 1 year. With this modification, this appeal is disposed of. 13. ment for 1 year and if his detention is not required in any other case. Issue release order if the accused has already suffered imprison 12.