Crl.A. 302/2003 BEFORE THE HON’BLE MR JUSTICE B. D. AGARWAL Being aggrieved with the conviction under Section 304 Part-II of the Indian Penal Code, vide impugned judgment and order dated 21.07.2003, pas sed by the learned Session Judge, Morigaon, in Session Case No. 67/2001, the con vict Niranjan Das @ Biswas has filed this appeal. 2. Heard Mr. Roy, learned counsel for the appellant and Mr. K. Muni r learned Additional Public Prosecutor for the State of Assam. I have gone throu gh the impugned judgment and the evidence preferred by the prosecution in the tr ial Court. 3. The prosecution case is that on 16/08/1999, at about 12:00 noon, the appellant accompanied by one Mohanlal Sarkar, Dhana Das and Kanai Sarkar, j ointly chased the deceased Bishu Mallik and finally, the appellant assaulted the deceased with a spade on his forehead and the injured was subsequently taken to different hospitals and finally succumbed to his injuries in the Gauhati Medica l College Hospital on 02.09.99. 4. Thereafter, the wife of the deceased lodged an FIR on 04/09/1999 and after investigation charge sheet was submitted against all the 4 (four) acc used persons. After commitment of the case the 4 (four) accused persons faced tr ial for committing the offence. However, after trial the remaining 3 (three) acc used persons have been acquitted and the appellant herein has been convicted, as mentioned earlier. After conviction the appellant was sentenced to undergo Rigo rous Imprisonment for 3 (three) years with fine of Rs. 1,000/- with default stip ulation of further RI for 2 (two) months. 5. In order to prove the offences, the prosecution examined altoget her 12 (twelve) witnesses. The relevant witnesses are PWs 1, 2, 3, 7 and 12. PW s 1, 2, 3 and 7 are the wife, mother, father and grandfather of the deceased whe reas, PW-12 is the Autopsy Doctor. The remaining witnesses are the Investigating officer, seizure witness and reported witnesses. 6. PW’s 2, 3 and 7 have categorically deposed that while the deceas ed was clearing jungle in the backside of the courtyard, the appellant assaulted him with a spade. It appears to me that PW’s 2 & 3 had come out of their house hearing the cry of the son but PW 7 has deposed that he saw the appellant and hi s accomplices hiding under a coconut tree with a spade and lathis. PW 7 has furt her deposed that he saw the appellant Niranjan giving a spade blow on the forehe ad of the deceased. In the cross examination, PW 7 stated that he saw the incide nt at a distance of 30 feet and it was preceded by altercation for few minutes. 7. I do not find penetrating suggestions to the aforesaid witnesses in the cross examination to take a view that either the appellant has been fals ely implicated or that the offence was committed by any other person. 8. It is true that PW 1 has eventually become hostile to the prosec ution. It is because, after few months of the death of her husband she had marri ed the accused. In other words, PW 1 is the wife of the accused and as such it w as but natural for her to discern the story narrated in the FIR that was lodged by her. 9. Even ignoring the deposition of the PW 1, the prosecution has su ccessfully established the offence of culpable homicide against the appellant. A ccordingly, the conviction under Section 304 Part-II of IPC is upheld. 10. With regard to the sentence Mr. Roy, learned counsel for the app ellant submitted that the appellant has a big family with five children and as s uch, the sentence may be reduced. The ground for reducing the sentence as urged by the learned counsel is not satisfactory. However, the prime witness of the pr osecution namely Ramesh Chandra Mallik (PW-7) has admitted in the cross examinat ion that after the incident the appellant and his friend had themselves arranged a vehicle and accompanied the deceased to the hospital. In this way, it appears to me that the appellant had repented for his offence on the spot. His post cri me conduct also indicates that the appellant had no intention to assault the dec eased but the incident had taken place due to altercation. In view of these fact s, the sentence is reduced to 2 (two) years Rigorous Imprisonment. However, the amount of fine and default sentence, as awarded by the trial court are maintaine d. 13. With the aforesaid modification, in the sentence this appeal sta nds dismissed. 14. The bail granted by this court vide order dated 23.09.2003, pass ed in MC No. 525/2003, stands vacated. The appellant is directed to surrender in the trial court immediately to serve out the remaining part of the sentence.