High Court · 2012

of the offence, which he was charged with, learned trial Court convicted him ac cordingly and passed sentence against him as mentioned above. Aggrieved by his c onviction and the sentence passed against him, the accused has preferred this ap peal.

7. t, and Mr. KM Mazumdar, learned Additional Public Prosecutor, Assam. We have heard Mr. BK Bhagawati, learned counsel for the accused-appellan

8. While considering the present appeal, it needs to be noted that PW1 and PW2 were examined by the prosecution as eye witnesses to the occurrence of assau lt on, and killing of, Sakta Bordoloi.

9. Let us, first, consider the evidence of PW1. According to her evidence, accused Bapudhan, is the cousin of her husband, the accused being son of the pat ernal uncle of deceased Sakta, their houses being adjacent to each other with no boundary fencing between the two houses. On the first day of Bohag Bihu, i.e., on 14-01-2005, the accused took his meal at the house of Sakta and after taking meal, when PW1, along with her husband, her eldest son, aged about 10 years, and other members of her family came to the courtyard, the accused left for his hou se. It is in the evidence of PW1 that when they were all in the courtyard, the a ccused, suddenly, came with a heavy split bamboo and gave a blow on her husband, her husband fell down, whereupon she and her mother-in-law took her husband ins ide the house and, then, she went to the pharmacy, but the pharmacy was closed. After some time, her husband started vomiting, passing stool and lost his senses . It is also in the evidence of PW1 that in the morning, the neighbouring people took her husband to the civil hospital, she lodged the Ejahar, but her husband succumbed to the injuries. PW1 has also deposed that the police came to their ho use, she showed the piece of bamboo, which was lying at her courtyard, and the p olice seized the same. PW1 has also deposed that after taking her husband to the civil hospital, the females of the locality captured the accused and handed him over to the police. What is, now, extremely important to note is that in her evidence, PW1 d 10. eposed that there was an earthen lamp lying lit in her courtyard and there was l ight in the courtyard. PW1 has also deposed that she do not know why her husband was killed by the accused. In her cross-examination, PW1 has admitted that at t he time of taking meal, her husband and also the accused took liquor on the occa sion of Bihu and that there was no quarrel between them.

11. Close on the heels of the evidence of PW1, PW2 has deposed that on the d ay of occurrence, at about 10 pm, when she was at the courtyard with her daughte r-in-law, Dipali (PW1), Sakta and others, accused, suddenly, came there with a h eavy piece of bamboo and gave a blow on the head of Sakta and, on receiving the blow, Sakta fell down, whereupon they carried him to the bed and leaving Sakta at his house on the bed, she left her house, which is adjacent to the house of the said deceased, and on the next morning, Sakta died. In her cross-examinatio n, PW2 has clarified that she did not raise hullah after the occurrence.

12. So far as PW 3, PW5 and PW6 are concerned, none of them was eye witness to the occurrence and they merely heard about the occurrence of assault on decea sed Sakta. This apart, the evidence of these witnesses, who only heard about the occurrence, is nothing, but hearsay and we, therefore, keep excluded, from the preview of our consideration, the evidence of PW3, PW5 and PW6.

13. We may, now, pause here and point out that so far as PW1 is concerned, h er evidence has remained wholly unshaken in her cross-examination and same is th e position of PW2. It has been submitted by the accused-appellant before us tha t though PW1 has deposed that there was an earthen lamp lying lit at the courtya rd and there was, therefore, light at the courtyard, no such statement was made by PW1 at the time of her, when her statement, under Section 164 Cr.P.C., was re corded.

14. What we, however, note is that the defence, while cross-examining PW1, n owhere, suggested to PW1 that her evidence, that an earthen lamp was lying lit a t the courtyard and there was light in the courtyard, was not true. This apart, the attention of PW1 was never drawn to her previous statement made under Sectio n 164 Cr.P.C., wherein she had not stated about the said earthen lamp. Section 1 45 of the Indian Evidence Act makes it mandatory that when a witness is intended to be contradicted by any previous statement, which he had made in writing, or had been reduced into writing, then, his attention be drawn, before the writing can be proved, to that part of the statement, which is sought to be used for the purpose of conducting him. The object of Section 145 is that the witness should not be denied the opportunity of offering his or her explanation to the contrad iction, which is sought to be proved. In other words, without giving any opportu nity of explaining to have his or her say in the matter, no previous statement o f a witness can be used for contradicting him. In the present case too, the defe nce, having not drawn the attention of PW1 to her previous statement, made under Section 164 Cr.P.C., cannot take the advantage of contradiction, in question. T his apart, we do not find any reason to disbelieve the evidence of PW1. So far as the evidence of PW2 is concerned, her evidence also clearly pr 15. oves the fact that the accused, suddenly, came with a piece of bamboo in his han d and gave a blow on the head of Sakta. Though it is true, as elicited by the de fence, while cross-examining PW2, that PW2 had not stated, while her statement, under Section 164 Cr.P.C. was recorded, that she was present at the courtyard, t he fact remains that there is no cross-examination of PW2 to show that she had n ot stated before the Magistrate, while her statement was being recorded under Se ction 164 Cr.P.C., that she had seen the accused giving blow on Sakta’s head. Th e fact, therefore, that PW2 did not specifically state that at the time of occur rence, she was present at the courtyard, can be of no avail to the defence in th e absence of anything showing that in her previous statement, PW2 never stated t hat she had seen the accused giving blow on Sakta’s head by a piece of bamboo. T hus, not only the evidence of PW1, but even the evidence of PW2 has remained uns haken on the material aspects.

16. Coming to the evidence of the doctor (PW4), who, admittedly, conducted post mortem on Sakta’s dead body on 16-04-2005, we notice that his findings are as under: (cid:28)Stout body, rigor mortis present.

1. Swelling of scalp over posterior part of the right frontal and right parienta l bone about 2 (cid:29) x ‰ (cid:28) in size. Scalp has slight laceration with abrasion over th e swelling. 2. Haematoma over the right frontal and parietal bone 3 (cid:29) x ‰ (cid:28) in size. 3. 4 (cid:29) x 3 (cid:29) long comminuted fracture over the right frontal bone 3 (cid:29) superior to t he mid position of the right eye-brow. 4. Doramater, arachnoidmater and piamater lacerated beneath the fracture side. C ranial cavity is full of semi-clotted blood. 5. Right frontal lobe of brain is lacerated, crashed with blood inside the brain matter. (cid:29)

17. The doctor (PW4) has opined that the cause of death was due to severe bl ood loss, intra-cranial tension and neurogenic shock as a result of head injury by blunt weapon, injuries being grievous in nature.

18. The findings of the doctor and his opinion, with regard to the cause of death or the nature of weapon used, were not disputed by the defence at the tria l. It has, however, been submitted by Mr. Bhagwati, learned counsel for the appe llant, that while PW1 and PW2 claim that the accused-appellant gave a single blo w on the head of the deceased, the doctor’s evidence shows that the deceased sus tained as many as five injuries on his head. While dealing with the submission, so made, it is imperative to point out that a microscopic examination of the fin dings of the doctor (PW4) shows that all the injuries, which the doctor has desc ribed, were result of a single blow on the head of the deceased. There is no med ical science, which indicates that a single blow must result into one injury, fo r, there can be multiple layer and every layer may sustain injuries.

19. In the present case too, while there was swelling on the scalp, there wa s also haematoma and comminuted fracture resulting into severe blood loss, intra -cranial tension and neurogenic shock. All the injuries, which PW4 (doctor) has described, can be caused, in our considered view, by a single blow, which the de ceased had sustained. The medical evidence on record also shows that the head in juries were sustained by blunt weapon and the weapon, which the accused-appellan t is alleged to have used, was also blunt weapon.

20. Drawing attention of this Court to the provisions of Section 85 IPC, it has been contended by Mr. Bhagawati, learned counsel for the appellant, that as the accused was under the influence of liquor, he ought not to have been held, a nd may not, now, be held, to have committed any offence. The submission, so made , force us to reproduce the provisions, embodied in Section 85 IPC, which read a s under: (cid:28)Section 85. Act of a person incapable of judgment by reason of intoxication cau sed against his will Nothing is an offence which is done by a person who, at the time of doing it, is , by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law: provided that the thing w hich intoxicated him was administered to him without his knowledge or against hi s will. (cid:29) A careful reading of Section 85 IPC shows that the mere fact, that a per 21. son commits an offence by reason of intoxication, cannot exonerate him unless th e proviso to Section 85 IPC too, is satisfied and the proviso requires that the thing, which intoxicated the accused, was administered to him without his knowle dge or against his will. If, therefore, a person takes liquor and, under the inf luence of liquor, assaults another person, he cannot fall back upon Section 85 I PC and if he intends to do so, he must show that the liquor, which he had taken or whatever had intoxicated him, was administered to him without his knowledge o r against his will.

22. In the present case, the evidence on record clearly shows that both, the accused as well as the deceased, had consumed liquor and there is nothing on re cord to show nor was it ever claimed by the defence that the accused was given l iquor and made to consume the same without his knowledge or that he had been int oxicated against his will.

23. ons of Section 85 IPC stand attracted to the facts of the present case. In the circumstances as indicated above, we do not find that the provisi

24. Though we are satisfied, as we have already discussed above, that Sakta died as a result of single blow given on his head by the accused-appellant by a piece of bamboo, we have the responsibility to describe, now, if the accused cou ld have, in the facts and circumstances of the present case, held guilty of the offence of murder. While considering this aspect of the case, it needs to be bor ne in mind that it is not the case of the prosecution that the accused fled away from the place of occurrence after giving blow on Sakta’s head. There is also n othing, in the evidence on record, to show that anyone tried or attempted to sto p the accused from giving further blows on Sakta. In such circumstances, it is d ifficult to hold that the accused gave the blow, as described hereinabove, with the intention of causing death of Sakta or with the intention to cause such inju ry as was likely to cause death. The accused is also not shown to have the knowl edge that the blow, which has been given, would prove fatal inasmuch as not mere ly the wife, but other inmates of the house of the deceased, too, did not consid er that the injury, which Sakta had sustained, would prove fatal. Even the evide nce of PW2 rules out the possibility of the accused-appellant having assaulted h is cousin, Sakta, with intent to cause his death, because after making the decea sed lie on the bed, even PW2 left for his house. The assault on Sakta was, thus, as the evidence on record reveals, an act of assault and not to cause death. Th is is not to say that a single blow cannot make a person responsible for the cha rge of murder. One cannot, however, avoid taking into account the other factors, which are relevant to the facts in issue, and, in the present case, when the ev idence on record is scanned as a whole, it does not transpire that the accused i ntended to cause his cousin’s death.

25. In fact, besides the evidence of PW1 and PW2, PW3 has deposed that on th e next morning of the occurrence, the villagers informed him that Bapudhan had a ssaulted Sakta on the previous night and when he came to Sakta’s house, he found that Sakta had already been taken to hospital, but some others, present in Sakt a’s house, told him that there is no hope of survival of Sakta. He also noticed Bapudhan coming and he asked the accused about his decision, the accused admitte d before him that he assaulted Sakta. The evidence, so given by PW3 remained who lly unshaken. This clearly shows that the accused did make extra judicial confes sion as regards the facts that he had assaulted Sakta. What is, however, importa nt to note, in this regard, is that it is in the evidence of PW3 himself that th e accused told him that he was trying to manage money for taking Sakta to Guwaha ti. This, once again, rules out that accused intended to cause Sakta’s death.

26. Thus, when the accused is not proved to have committed the offence of mu rder, what offence, if any, can he be held liable to have committed? This questi on brings us to Section 320 IPC, which defines grievances hurt. The definition o f grievous hurt shows that fracture of a bone is a grievous hurt.

27. In the present case, the medical evidence on record shows fracture over right frontal lobe of brain. There can, therefore, be no doubt that the hurt, wh ich had been caused by the accused was without receiving any provocation from th e deceased and thereby committed the offence of grievous hurt. Under Section 326 IPC, when a person cause voluntarily grievous hurt by a weapon, which is danger ous or by any instrument, which is used as weapon of offence, which is likely to cause death, then, his act become punishable with imprisonment for life or with imprisonment for either description for 10 (ten) years and shall also liable to pay fine.

28. In the case at hand, when the evidence on record is carefully examined, it leaves no room for doubt, in our mind, that while the prosecution failed to p rove that the accused-appellant had committed the offence of murder, the prosecu tion succeeded in proving, beyond reasonable doubt, that the accused-appellant h ad committed the offence of grievous hurt, punishable under Section 326 IPC.

29. This appeal, therefore, partly succeeds. While the impugned judgment and order, convicting the accused-appellant under Section 302 IPC and consequential sentence passed against him, are hereby set aside, we convict the accused-appel lant under Section 326 IPC.

30. Coming to the sentence, which needs to be passed against the accused-app ellant, we notice that the accused-appellant has been in custody since the date of his arrest, i.e. 15-04-2005. We accordingly sentence the accused to suffer ri gorous imprisonment for a period of seven years and pay a fine of Rs. 1,000/- an d, in default to undergo rigorous imprisonment for a further period of three mon ths.

31. Both the sentences aforementioned are hereby directed to run concurrentl y. The period of imprisonment, already undergone by the accused-appellant, shall be set off in accordance with law.

32. tand disposed of. With the above observations and directions, this criminal appeal shall s

33. Send back the LCR.