High Court · 2012

3. One Smti. Dipali Bora lodged a first information before the Kamp ur Police Station on 11-05-2000 alleging that her husband Dilip Bora was killed by Shri Naren Bora and Shri Bipul Bora on the night of 10-05-2000 at about 10 pm . The first information was treated as FIR and on the basis of the same, Kampur P.S. Case No.26/2000 u/s 302/34 IPC was registered.

4. The police investigated the case and after completion of investi gation, submitted charge-sheet against both the accused persons u/s 302/34 IPC. In the meanwhile, the case was registered in the Court as G.R. Case No.701/2000. The case was thereafter committed to the Court of Session for trial. Subsequent ly, formal charge was framed against the accused persons u/s 302/34 IPC by the l earned Sessions Judge, which on being read over and explained to the accused, th ey pleaded not guilty and claimed to be tried.

5. The prosecution examined as many as eight witnesses. The defence side did not adduce any evidence. The statements of the accused persons were re corded u/s 313 of the Code of Criminal Procedure (Cr.P.C.). The plea taken by th e defence was of total denial.

6. On consideration of the evidence adduced and after hearing the a rguments advanced, the learned trial Court convicted accused Naren Bora u/s 304 Part-II IPC but acquitted the other accused Shri Bipul Bora of the charge. The l earned trial Court imposed the sentence as indicated above on the accused Shri N aren Bora (appellant).

7. 8. Hence this appeal by Shri Naren Bora. This Court by order dated 03-12-2004 had admitted the appeal and by a separate order passed on the same day, the execution of the sentence was s tayed and the appellant was allowed to remain on previous bail.

9. Heard ld. Counsel for the parties.

10. Learned Counsel for the appellant Shri D. K. Sarmah submits that the incident is a most unfortunate one as the appellant happens to be the fathe r of the deceased. He submits that from the evidence on record it is evident tha t the deceased was very disobedient and often used to abuse his parents. On the day of the incident, he had returned home in a drunken condition and abused his parents by using filthy words. He came towards the appellant with a pointed bamb oo piece to assault him. It was at that stage that the appellant picked up a dao which was lying nearby and inflicted a blow on the left hand of the deceased. H e submits that the appellant did not cause injury on the body of the deceased ei ther with the intention to cause death or to cause such bodily injury as was lik ely to cause death. Learned Counsel further submits that the appellant also did not commit the act with the knowledge that it was likely to cause death. He, the refore, contends that the ingredients constituting an offence u/s 304 Part-II IP C are absent in the present case. Consequently, he submits that the conviction o f the appellant under the aforesaid section cannot be justified. As such, the co nviction may be set aside and the appellant be acquitted.

11. Ms. B. Saikia, learned Additional Public Prosecutor, Assam, on t he other hand submits that the appellant had made a confessional statement and t he learned trial Court was justified in placing reliance on such confession and in convicting the appellant under the aforesaid section. She therefore submits t hat there is no merit in the appeal and the same should be dismissed.

12. In this case, the facts are not in dispute. The facts which have emerged from the evidence adduced are that the deceased was the son of the appe llant. He was very disobedient and it appears that he led an unruly life. On tha t fateful evening, the deceased had returned home in a drunken condition and abu sed his parents. He came out of his room and moved towards the appellant with a pointed bamboo piece. When he was about to strike the appellant with the pointed bamboo piece, the appellant picked up a dao which was lying nearby and inflicte d one blow on the left hand of the deceased below the elbow. Immediately after t he incident, he went to the police station alongwith the pointed bamboo piece. L ater on, he also produced the dao and handed over the same to the police. Subseq uently, the victim died in hospital.

13. The appellant had made confessional statement on 15-05-2000 befo re the learned Judicial Magistrate, who deposed as PW 8. In his confessional sta tement, the appellant narrated the above incident. He, however, made a significa nt statement that he did not hit the victim to kill him. PW 1 is the doctor. He deposed that he had performed post-mortem examination on 11-05-2000 on the dead body of the victim. He stated that he found one deep sharp cut wound on the left arm of the deceased on the medial side measuring 5 (cid:29) x 1 (cid:29) which was bony deep. A ll the other organs and body parts were found healthy. He opined that the cause of death was due to shock and haemorrhage as a result of the injury sustained an d that any sharp weapon like a dao could have caused the injury.

14. There was only one wound on the body of the deceased i.e., on th e left arm below the elbow. The learned trial Court rightly held that the appell ant did not select any vital part of the body of the deceased to inflict the inj ury and that there was no intention on the part of the appellant to cause the de ath of the victim. Therefore, the learned trial Court rightly did not convict th e appellant u/s 302 IPC.

15. However, from the materials on record and in view of the deliber ations made above, this Court is of the considered opinion that even the ingredi ents necessary to constitute an offence u/s 304 Part-II IPC are absent in the pr esent case. Section 304 Part-II IPC is attracted when it is proved that even if the accused had no intention to cause such bodily injury as was likely to cause death but had the knowledge that the injury was likely to cause death. As has be en noted above, the appellant had inflicted only one blow which did not cause an y injury on the vital parts of the body of the deceased. The injury was caused o n the left arm of the deceased below the elbow. Therefore, it cannot be said tha t the appellant had the knowledge that the injury was likely to cause the death of the deceased. In view of the above, the conviction of the appellant u/s 304 Pa 16. rt-II IPC cannot be sustained. Accordingly, the impugned conviction and sentence are set aside. The accused-appellant Shri Naren Bora is therefore acquitted.

17. The appeal accordingly stands allowed.