Crl.A. 257/2005 BEFORE HON’BLE THE CHIEF JUSTICE MADAN B.LOKUR HON’BLE MR. JUSTICE A.K.GOSWAMI JUDGMENT AND ORDER ( A.K.Goswami,J) This appeal is directed against the judgment dated 23.09.2005 passed by the learned Ad-hoc Additional Sessions Judge No. 1, Kamrup, Guwahati in Sessions Case No. 142 (K) /2003 convicting the appellant under Section 302 IPC and sente ncing him to suffer rigorous imprisonment for life and to pay a fine of Rs. 2000 /-, in default of payment of fine, further imprisonment for 1 month. 2. The appellant Shri Maheswar Nath is stated to have killed his brother S hri Chandradhar Nath in the courtyard of his house by piercing him with a balla m (spear) at around 9 P.M. in the evening of 25th of April, 2003 and to this ef fect , an Ejahar was lodged by another brother Shri Kamleswar Nath at around 10. 15 P.M. with the Officer-In-charge, Kamalpur police station , on the basis of wh ich, Kamalpur P.S. Case No. 71/2003 under Section 302 IPC was registered . 3. The case was taken up for investigation and on completion of investigati on, charge sheet under Section 302 IPC was submitted against the appellant and t he case being exclusively triable by the Court of Sessions, the Committal Magist rate , sent the records of the case to the Court of learned Sessions Judge, Kamr up for trial and accordingly, Sessions Case No. 142 (K)2003 was registered. 4. P.W-1 is the informant. Hearing a commotion at about 9 P.M , he came out on a run and found that deceased was lying injured on the lap on his wife in th e courtyard of his house and he told him that the accused had assaulted him. H e saw a piercing injury caused by the ballam (spear) in the left side of the che st. Accordingly, he had filed the Ejahar and when police came , Maheswar Nath w as not found at home. Next day, a ballam (spear) which was about 7 feet long , was found near the bank of the pond of the house of the accused. The police sei zed the said ballam (spear) vide Exhibit-3 . 5. P.W-2 is the wife of the deceased. She deposed that on the fateful day a t around 9 P.M , the deceased had gone to their tube well to wash his feet by t aking a lamp and at that point of time , she was at a distance of 7-8 feet from her husband. Subsequently, she heard her husband’s screeming and she saw the ac cused , after piercing her husband with a ballam (spear) , was standing there w ith the spear in his hand . She took her husband in her arms and stating tha t Maheswar had pierced him with the ballam (spear) , he passed away. She starte d screaming and after Kamleswar and Amrit Nath had arrived , she became unconsc ious. 6. P.W-3, Amrit Nath , is a cousin of the victim and the accused. He reache d the place of occurrence after hearing screaming of P.W-2 . P.W-2 infomed him t hat the accused had killed Chandradhar Nath by piercing him with a ballam. He al so saw the accused standing with a ballam (spear) in the compound of Chandradha r. According to his version, Maheswar surrendered at the police station next day and on being asked about the occurrence , he stated that he was planning to ki ll Chandradhar for last 8 years. 7. P.W-4 is a co-villager who went to the place of occurrence on hearing hu llah and he saw the deceased lying dead in his own courtyard. He is a witness to the seizure of the ballam (spear) which the police had recovered from the bac k side of the house of the accused. 8. P.W-5 is the Doctor who conducted postmortem examination. He found the following stab injury :- Stab injury of elliptical in shape 5 cm x 2 cm in size over the joint of the l eft chest, 1.5.cm away from the mid line and 7 cm above the left nipple, this injury was chest cavity deep, lungs tissue seen coming out of the opening of t hat cut injury ; upper margin was inclined , lower margin was smooth and clean, blood clot firmly adherent to the cut margin which resisted to water washing . The second costal cartilege was incised , the thoracic cavity was full of fluid y and clotted blood ; the left hylum was punctured. Other parts of thoracic fou nd normal but seemed pale due to loss blood . According to him, the death was due to haemorrhage and shock due to injury susta ined. In cross examination , he stated that there was only one injury and if th e deceased could have been shifted to hospital immediately for treatment, he co uld have survived. 9. P.W-6 also had gone to the place of occurrence after hearing hue and cry in the house of the deceased Chandradhar. He had found the deceased lying injur ed in his courtyard . P.W-2 had also informed him that it was the accused who h ad caused injury to her husband by means of a ballam (spear).He is also a witnes s to the seizure of the spear vide Exhibit-3. 10. P.W-7 is the father of the accused and the deceased. He was declared hos tile by the prosecution. In the cross-examination by the prosecution , he narrat ed what he had stated before the Investigating Officer. In cross-examination by the defence , he had deposed that the deceased Chandradhar was a dacoit and he h ad got him released from jail twice. 11. P.W-8 is the Investigating Officer. It came out from his evidence that p rior to filing of the Ejahar, one Jogen Nath had informed the police regarding the occurrence over telephone. In cross-examination , he had stated that he had not seen any mark of blood on the spear as it was rubbed by soil. He had state d that he did not send the seized spear for examination to the Forensic Labor atory .It is also stated by him that P.W-1 did not tell him that P.W-2 had rep orted to him about the assault inflicted by the accused. He also stated that P. W-1 had told him that prior to the incident , there was a quarrel between the d eceased and the accused. 12. Defence had also examined 1 witness. According to him, the accused worke d under him as a day labourer in his truck and on the fateful night , the accuse d had stayed in his house. The 2 sons of the accused and his father was arrested and , therefore, the accused had himself appeared at the police station to get them released. According to him , it was well known in the area that the dece ased was a dacoit. 13. The accused was examined under Section 313 Cr.P.C. In his such examinat ion, he had stated that he worked as a day labourer and worked in a truck . Hi s brother Chandradhar had relation with dacoits and they committed dacoity. H e also stated that the ballam (spear) which was seized by police did not belo ng to him. 14. We have heard the learned Counsel for the parties and have also perused the materials on record . 15. P.W-2 is the wife of the deceased who had been standing at a distance of 7-8 feet from the place where the occurrence had taken place. Defence has not been able to shake her testimony in any manner. The version of the prosecution witnesses who had come to the place of occurrence after the occurrence has al so substantially corroborated the P.W-2 .The defence version that the accused w as with D.W-1 on the day of occurrence does not get support from the materials o n record. There is no evidence that the police had arrested 2 sons of the accuse d as also his father, P.W- 7. Such evidence of D.W-1 , has not inspired confid ence and the same cannot dislodge the prosecution case . In view of the aforesai d, we are of the opinion that there is no doubt that it was the appellant who i s responsible for the death of Chandradhar. 16. The learned Amicus Curiae, appearing for the appellant, in his argument , also appeared to have reconciled to the fact that there can be no two view s with regard to the appellant assaulting Chandradhar , resulting in his death. The learned Amicus Curiae, Mr. N. Ahmed , has urged that the appellant g ave only one piercing blow with the spear which is also fortified by the evid ence of P.W-5. Even in absence of any attempt to provoke him, he did not give an y more blows with the spear. P.W-7 had also suggested in cross-examination tha t timely treatment could have saved the deceased. According to him , materials on record do not disclose that the appellant had any intention to cause death of deceased and ,therefore, his conviction under Section 302 IPC is liable to be i nterfered with. The learned Counsel for the appellant places reliance in the c ase of Chandan Gogoi Vs. State of Assam, reported in 2005 (1) GLT-35 to impress upon us that in the facts and circumstances of the case , the conviction and se ntence entered into by the trial court under Section 302 IPC can be altered to one under Section 304 Part II IPC. 17. The learned P.P, Assam , Mr. Z. Kamar , however, has contended that in the face of evidence on record , there is no manner of doubt that the appellant is guilty under Section 302 IPC. 18. We have given our anxious consideration to this aspect of the matter and we find that the submission of the learned Amicus Curiae has some force. It i s evident from the cross-examination of the P.W-8 that he was told by P.W-1 that prior to the occurrence, there was a quarrel between the deceased and the accus ed. P.W-2 had, however, not told about such a quarrel and on the contrary P.W-1 had denied in his cross-examination that there was any quarrel between the decea sed and the accused over the matter of boundary fencing prior to the incident . It would appear that the prosecution witnesses had sought to suppress the quarr el that had taken place . It is also clear that the appellant had inflicted onl y one injury and, therefore, we are inclined to take a view that the appellant had no intention to cause the death of the deceased. 19. Taking into consideration all the attending facts and circumstances, we are of the considered opinion that the case falls under Section 304 Part II I PC. Accordingly, the appellant is convicted under Section 304 Part II IPC and h e is sentenced for the period already undergone. The appellant be released forth with. 20. Send down the Lower Court record.