High Court · 2012

By the judgment and order, dated 28-05-2004, passed, in Sessions Case No. 30 (S- C) of 2002, by the learned Additional Sessions Judge, Sivasagar, the accused-app ellant, namely, Shri Chiniga Reddy, stand convicted under Section 304 (Part II) IPC and he has been sentenced to undergo rigorous imprisonment for five years an d pay fine of Rs.5,000/- and, in default of payment of fine, undergo rigorous im prisonment for a further period of two months.

2. described as under: The case of the prosecution, as emerged at the trial, may, in brief, be On 06-10-2000, at about 4 pm, on the occasion of Durga Puja accused came to the house of Bhadra Kanhar (since deceased) of Doomardolone Tea Estate and a sked for a place to sleep. When the inmates of the house told the accused that t hey would be going to see puja and there was no space to allow him (accused) to sleep, accused asked Bhadra Kanhar (since deceased) if liquor was available. Whe n the said deceased replied in the negative by saying that they did not have liq uor as they were daily wage earners, the accused gave fist blow on the face and chest of the said deceased. On being so assaulted, when the said deceased fell d own on the ground, PW2, son of the said deceased, tried to take away the accused , but PW2 failed in removing the accused away. The accused, then, pulled out the said deceased, threw him on the ground at the courtyard and continued to kick h im. When PW2, once again, tried to save his father, the accused picked up firewo od and gave a blow with the same on the leg of PW2. Out of fear, the neighbours did not come out to the rescue of the said deceased. After some time, PW3, wife of PW2, and PW4, widow of the said deceased, took the said deceased to the garde n hospital and, while remaining under treatment at the said hospital, the said d eceased succumbed to the injuries on the next morning. On a written Ejahar being lodged, at Sepon Police Outpost, by PW1, who was the VDP Secretary, with regard to the occurrence, General Diary Entry No. 11, dated 07-10-2010, was made. Late r on, based on the said Ejahar and treating the same as First Information Report , Moranhat Police Station Case No. 82 of 2000 was registered, under Section 302 IPC, against the present appellant. During the course of investigation, police v isited the place of occurrence, examined the witnesses, got post mortem examinat ion, over the said dead body, performed and, then, laid a charge sheet, under Se ction 302 IPC, against the accused-appellant.

3. At the trial, a charge under Section 302 IPC was framed against the accu sed-appellant. To the charge, so framed, the accused-appellant pleaded not guilt y.

4. In support of their case, prosecution examined altogether eight witnesse s. The accused was, then, examined under Section 313 Cr.P.C. and, in his examina tion aforementioned, the accused denied that he had committed the offence, alleg ed to have been committed by him, the case of the defence being that of denial. No evidence was adduced by the defence.

5. Having, however, found the accused guilty of the offence, which he stood charged with, the learned trial Court convicted him accordingly and passed sent ence against him as mentioned above. Aggrieved by his conviction and the sentenc e passed against him, the accused, as a convicted person, has preferred this app eal.

6. Mr. KA Mazumdar, learned Additional Public Prosecutor, Assam. I have heard Mr. P Bora, learned counsel for the accused-appellant, and

7. Before dealing with the evidence of the witnesses, who have been examine d by the prosecution, as eye witnesses to the alleged occurrence of assault on t he said deceased at the hands of the accused-appellant, let me, first, consider the evidence of the doctor (PW5), who had, admittedly, performed post mortem exa mination on 08-10-2012 and found as follows: (cid:28)It was a deadbody of adult male, in fresh condition, rigor mortis present, eyes and mouth were closed. On examination, I found the followings: External Appearance injuries:

1. A. Multiple echymotic patches over left side of anterior chest wall. B. Bruises over the abdomen over the umbilicus. C. Incised looking wound over left side of left eye-brow stitching was present f our in number. 2. Cranium & spinal channel: A. Scalp, Skull and Vertebra were healthy. Membranes, brain and spinal cord cong ested. 3. Thorax : Walls, ribs and cartilage fracture of ribs left side involving 3rd t o 7th ribs. Pleurae congested and torn in left side in front. Right lung congested, left lung lacerated of lower to be in front pleural cavity contained dark coloured blood approximately 200 ml. Both the ventricks were empty. 4. Abdomen, Wall: Bruise over abdomen above the umbilicus as described in extern al appearance. 5. Peritoneum, Mouth, Esophagus were congested. 6. Stomach, intestine contained semi digested food particles. In large intensive contained fecal matter.

7. Liver, Splla, Kidney - congested. Bladder was empty. (cid:29) (cid:28)Death in my opinion due to visceral injury i.e. lung injury following injury su stained as described. Ext. 3 is my P.M. report and Ext. 3(1) is my signature. By fall visceral injury as found cannot be caused. Lung was torn. I examined the lung at the time of post mortem after opening the chest. To Court - Whether visceral injury found by you is a homicidal one ? Ans. Yes; and it may be caused by blunt object. (cid:29)

8. , injury to the lung. In the opinion of the doctor, the death was due to visceral injury, i.e. In his cross-examination by the defence, the doctor (PW5) has ruled out 9. that visceral injury, as had been found in the said dead body, could have been c aused by fall. In fact, the evidence of the doctor (PW5) is that the lung was to rn and that he had examined the lung at the time of post mortem examination afte r opening the chest. This assertion went wholly unchallenged by the defence.

10. It is, therefore, clear that the lung of the accused was found torn and it is because of the injuries, sustained by the said deceased on his lung, as de scribed hereinbefore, that Bhadra Kanhar died. The doctor has also deposed that the visceral injury, which he had found on the said deceased, was homicidal in n ature. This piece of evidence, too, went unchallenged by the defence. Though neither the doctor (PW5) has deposed nor has it been elicited by 11. the prosecution or the defence if the injury, which had been sustained by the sa id deceased, could have caused death of a person in the ordinary course of natur e, it clearly follows from the nature of injury, which the said deceased had sus tained on his lung, that the torn lung could have led to death in the ordinary c ourse of nature.

12. Bearing in mind, what is indicated above, when I turn to the evidence of PWs 2, 3 and 4, what I notice is that these three witnesses have deposed, in tu ne with each other, that the accused came in drunken state to the house of the s aid deceased and asked for place to be made available to him so that he (accused ) could sleep and when the inmates of the house told the accused that since they were going to see puja, because it was in the occasion of durga puja, and that there was no space for the accused to sleep, the accused asked the said deceased if there was liquor available at his home and when the said deceased responded by saying that as they were day labourers, there was no liquor in the house, the accused gave fist blow on the face and chest of the said deceased. It is in the evidence of PWs 2, 3 and 4 that on being so assaulted, as described hereinbefor e, when the said deceased fell down, his son (PW2) tried to take away accused, b ut the accused did not go away; rather, the accused pulled out the said deceased to the courtyard, threw him on the ground and kicked him continuously on his ch est and that when PW2, once again, tried to save his father, the accused picked up a piece of firewood and gave a blow with the same on the leg of PW2. It furth er transpires from the evidence of PWs 2, 3 and 4 that after some time, the wife and daughter-in-law of the said deceased took the said deceased to the garden h ospital, where he was treated, and, while remaining under the treatment there, t he said deceased succumbed to his injuries on the next morning and, later on, po lice came and took away the dead body.

13. Though PWs 2, 3 and 4 have been subjected to cross-examination by the de fence, nothing could be elicited by the defence, which could show that the mater ial aspects of the evidence, given by PWs 2, 3 and 4, were untrue or false, in f act, all the material aspects of the evidence of PWs 2, 3 remained wholly unshak en in their cross-examination conducted by the defence. Situated thus, this Court sees no reason to disbelieve the evidence of P 14. Ws 2, 3 and 4 and their evidence clearly show that the accused gave fist blows o n the face and chest of the deceased and also kicked him on his chest repeatedly , when the deceased was dragged out and thrown at his courtyard. The medical evi dence on record, as discernible from the evidence of PW5, supports the oral test imony of PWs 2, 3 and 4 inasmuch as right lung of the said deceased was congeste d and his left lung was lacerated and it is because of the ventricles injury (i. e., injury on lung), which was found torn that the death was caused.

15. I may pause here to point out that it has been submitted by Mr. Bora, le arned counsel for the accused-appellant, that according to the evidence of PW6, the said deceased used to drink alcohol heavily and he was physically not health y. I may point out, in this regard, that when the doctor (PW5) was cross-examine d by the defence, the defence did not elicit from him if the condition of the lu ngs of the said deceased was already in poor condition and got, therefore, torn. Hence, in the absence of any medical evidence showing that the said deceased su ffered from any form of physical unfitness, the evidence, given by PW6, cannot h elp advance the case of the accused-appellant. This apart, when PWs 2, 3 and 4 w ere being cross-examined by the defence, it was never sought to be elicited by t he defence or suggested by the defence that the said deceased used to drink heav ily and had not been keeping good health.

16. Because of what have been discussed and pointed out above, it becomes cl ear that the accused, as rightly concluded by the learned trial Court, committed the offence of culpable homicide not amounting to murder and since the Court di d not find that the accused had the intention to cause death, the learned trial Court has rightly held the accused-appellant guilty of the offence under Section 304(Part-II) IPC. The conviction of the accused-appellant for the offence, unde r Section 304(Part-II) IPC, does not, therefore, suffer from any infirmity, lega l or factual, and does not, consequently, call for any interference in this appe al.

17. Turning to the sentence, which has been passed against the accused-appel lant, it may be noted, though it has been passionately submitted, on behalf of t he accused-appellant, that the punishment is harsh, excessive and highly unreaso nable, when the acts of the accused are considered in their proper perspective, this Court is of the view that the sentence, which has been passed against the a ccused-appellant, is too harsh, abnormal, excessive or irrational. However, as t he accused did not use any weapon and the evidence on record does not show that he came with any premeditated mind, his sentence ought not to have exceeded a pe riod of three years of rigorous imprisonment with appropriate fine.

18. In the result and for the reasons discussed above, this appeal partly su cceeds. While the conviction of the accused-appellant, under Section 304 (Part-I I) IPC, is not interfered with, his sentence is reduced to three years of rigoro us imprisonment with fine of Rs. 3,000/- and, in default of payment of fine, to suffer rigorous imprisonment for a period of two months. The period, which the a ccused-appellant has already passed in imprisonment, shall, in terms of the prov isions of Section 428 Cr.P.C, be set off as against the sentence, which has, now , been passed in this appeal.

19. de above, this appeal shall stand disposed of. With the above modification in the sentence and with the observations ma

20. Send back the LCR with a copy of this judgment and order.