Crl.A. 42/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI HON’BLE MR. JUSTICE A.C.UPADHYAY Ranjan Gogoi, J The two accused/ appellants have been convicted under Section 30 2/34 IPC by the learned Sessions Judge, Goalpara in Sessions Case No. 10/2005. T hey have been sentenced to undergo R.I. for life and to pay a fine of Rs. 5,000/ - each, in default to suffer R.I. for six months more. Aggrieved, this appeal ha s been filed. 2. The short case of the prosecution is that on 18.4.2004 at about 9.p.m. P.W.1, Lakhi Rabha lodged an FIR in the Dudhnoi Police Station stating th at at about 5.30 p.m. of the same day while her husband, one Subarna Rabha, was returning home, the two accused/ appellants had inflicted severe injuries on him with their hands. It was further mentioned in the FIR filed that the villagers took the injured to the Dudhnoi Hospital where the doctor declared him to be dea d. 3. On the basis of the aforesaid FIR, Dudhnoi P.S. Case No. 54/04 w as registered and duly investigated by P.W.9, Madhusudan Nath and P.W.10, Nityar anjan Mahanta. In the course of the investigation, inquest was held on the dead body which was also sent for post mortem examination. A sketch map of the place of occurrence was prepared and the statements of the persons acquainted with the offence were recorded. Thereafter, at the conclusion of the investigation, char gesheet under Section 302/34 IPC was submitted against the accused/ appellants. The offence alleged being exclusively triable by the Court of Sessions, the lear ned Judicial Magistrate, 1st Class, Goalpara by order dated 5.2.2005 committed t he case for trial to the Court of Sessions at Goalpara. In the Trial Court charg e under Section 302/34 IPC was framed against the accused/ appellants to which t hey pleaded not guilty. In the course of the trial while ten witnesses were exam ined on behalf of the prosecution, no defence evidence was led. The accused/ app ellants, however, were examined and their statements recorded under Section 313 CrPC. Thereafter, at the conclusion of the trial, the accused/ appellants have b een convicted and sentenced as aforesaid giving rise to the present appeal. 4. P.W.1, Lakhi Rabha; P.W.2, Khiren Rabha; P.W.3, Bileswar Rabha; P.W.4, Mileswari Rabha; P.W.6, Sushila Rabha and P.W.7, Purnima Rabha are the ey e witnesses to the occurrence. A reading of the evidence of the aforesaid eye wi tnesses would go to show that on the date of the occurrence the deceased and his wife (P.W.1) were out of the house witnessing Kali Puja that was being performe d in the village. Evidently, the deceased returned from the Puja earlier and on the road was waylaid by the two accused/ appellants who had kicked and assaulted the deceased. The first person to witness the aforesaid assault was P.W.4, Mile swari Rabha who immediately ran towards the village and informed the wife of the deceased (P.W.1) who was returning from the Puja Mandap along with P.W.7, Purni ma Rabha. P.W.1 and 7 have deposed that on being informed by Mileswari Rabha (P. W.4) they ran towards the place of occurrence and found the accused/ appellants assaulting the deceased. On the other hand, P.W.2, 3 and 6 came to know of the o ccurrence either through the hue and cry on the road or from other persons and, thereafter, went to the place of occurrence to see the assault committed by the accused/ appellants on the deceased. P.W.5, Krishna Mohan Rabha whom the prosecu tion examined as an eye witness, however, did not support the prosecution case a nd he was declared hostile. 5. P.W.8, Dr. Selimul Alam had performed the post mortem examinatio n of the deceased. He has proved the post mortem report as Exhibit-3 and his sig nature thereon as Exhibit-3(1). According to P.W.8, the following injuries were found on the body of the deceased at the time of post mortem examination: A stout male body of about 59 years, average built, pupil semidilated, Rigor Mo rtis present, mouth partially open. One lacerated injury of 1 x 1 size over le ft hand, posterior aspect in middle, one lacerated injury of ‰ x ‰ size over l eft leg below knee joint anteriorly, abrasion irregular over back in gluteal r egion and irregular abrasion over back of chest, swelling of left side of chest. Cranium and spinal canal Scalp, skull, vertebrae, membrane, brain and spinal cord are healthy. Thorax Pleurae- congested, larynx and trachea- healthy, right lung-healthy, lef t lung-congested, pericardium-healthy, heart-right side chamber full of blood an d left side chamber empty, vessels- healthy. Abdomen:- Walls- healthy, Peritoneum- Left sided peritoneal cavity full of blood w ith congestion. Mouth, pharynx & oesophagus-healthy, stomach and its contents- h ealthy, small intestine and its contents-healthy. Large intestine and its conten ts- healthy, Liver-healthy, Spleen-Rupture of spleen in outer surface in middle portion. Kidneys-healthy, Bladder-healthy. Organs of generation, extema and inte rnal- healthy. Muscles, bones and joints Injury-Nil . Disease or deformity-Nil, Fracture- fracture of 5th, 6th, 7 th, 8th & 9th ribs left side of chest laterally, Dislocation- Nil. More detailed description of injury or disease Lacerated injury of the left hand and left leg as mentioned in column-I. Fracture of ribs of left side of chest as mentioned in column III. Rupture of s pleen as mentioned in Column IV. In my opinion the death is due to rupture of spleen with left sided abdo minal haemorrhage by blunt injury. . 6. P.W.9 and 10, as already stated, are the police officers who wer e associated with the investigation of the case at different points of time. The y have deposed with regard to the different steps taken by them in the course of the investigation of the case. 7. On the basis of the evidence adduced by the prosecution witnesse s, Mr JM Choudhury, learned senior counsel for the accused/ appellants has vehem ently contended that while the death of Subarna Rabha at the hands of the two ac cused/ appellants may have been proved and established by the prosecution, the l iability of the accused/ appellants, correctly determined, would be under Sectio n 304 IPC and not under Section 302 IPC as recorded by the learned Trial Court. In this regard, Mr Choudhury has submitted that all the eye witnesses to the occ urrence including the wife of the deceased (P.W.1) have uniformly and consistent ly stated that the accused/ appellants had assaulted the deceased by administeri ng kicks and blows with their hands. None of the witnesses have ascribed any inj ury on the deceased with any weapon. According to Mr Choudhury, the above facts would clearly demonstrate the absence of any intention on the part of the accuse d/ appellants to cause death of the deceased Subarna Rabha or to cause any bodil y injury which they knew was likely to cause death or which they knew would be s ufficient to cause death. Mr Choudhury has further submitted that the two accus ed/ appellants were young persons at the time of commission of the offence and t he evidence on record would really indicate an intention to cause some injuries to the victim whom they wanted to teach a lesson. Mr. Choudhury has, therefore, submitted that the offence committed by the accused/ appellants would more appro priately fall under Section 304, Part-II of the Indian Penal Code. Consequently, it is submitted that the conviction of the accused/ appellants and the sentence imposed may be suitably altered by the appellate court. 8. On the other hand, Mr KA Mazumdar, learned Public Prosecutor has submitted that the evidence and the materials on record make it absolutely clea r that the deceased was assaulted by the accused/ appellants and no other person (s). The learned Public Prosecutor, therefore, has submitted that the liability of the accused/ appellants is clearly well established. Mr Mazumdar has, however , left it to the Court to determine the appropriate offence for which the accuse d/ appellants should be convicted and the sentence to be imposed on them. 9. We have considered the evidence on record and the arguments adva nced by the learned counsels for the parties. The evidence of the eye witnesses examined by the prosecution has clearly established that the accused/ appellants had kicked the deceased and had inflicted blows on him and, in fact, while admi nistering such kicks and blows the accused/ appellants had also dragged the dece ased. The use of any weapon, much less any dangerous weapon, has not been establ ished by the prosecution. Moreover, a consideration of the medical evidence addu ced by P.W.8 indicates that while the deceased did not suffer from any external injury whatsoever, he had suffered rupture of the spleen possibly as a result of which his abdominal cavity was found to be full of blood. Apart from the above and fracture of the 5th, 6th, 7th, 8th and 9th ribs no other injury, external or internal, was found by P.W.8 at the time of post mortem of the deceased. 10. The absence of use of any weapon, much less a lethal or dangerou s weapon by the accused; the absence of any injury on any other vital part of th e body including the head/brain and the absence of any external injury except fo r the fracture of the ribs on the left side of the chest of the deceased, in our considered view, are relevant factors which would point out the absence of any intention on the part of the accused/ appellants to cause the death of the decea sed. The accused/ appellants are the nephews of the deceased i.e. sons of younge r brother of the deceased and it appears that the accused/ appellants had some g rievance against the deceased over his marriage with P.W.1. Possibly because of the aforesaid incident the accused/ appellants were annoyed with the deceased an d wanted to teach him a lesson. They, therefore, waylaid him and assaulted him b y giving him kicks and fist blows. However, such assault injured the deceased on a vital part i.e. spleen which got ruptured eventually leading to the death of the deceased. It is our considered view that if the circumstances in which death had occurred is seen in the proper perspective it would be possible to conclude that the accused/ appellants did not intend to cause the death of Subarna Rabha or to inflict any bodily injury on the deceased which they knew was likely to cause death. The acts committed by the accused/ appellants, in our considered vi ew, were intended to teach the deceased a lesson and to cause some physical harm to him which unfortunately resulted in death. We are, therefore, of the view th at the proper provision of the Indian Penal Code under which the accused/ appell ants should be convicted is Section 304, Part-II and not Section 302. We, accord ingly, alter the conviction of the accused/ appellants from Section 302 to Secti on 304, Part-II IPC. 11. The punishment for commission of an offence under Part-II of Sec tion 304 IPC is imprisonment which may extend to ten years. The accused/ appella nts were young persons at the time of commission of the offence. Even as on date they are in mid twenties. They have been in prison from at least 5.12.2006 i.e. the date of judgment of the Trial Court. Taking into account all the aforesaid facts, we are of the view that a sentence of rigorous imprisonment for five year s would adequately meet the ends of justice. The sentence of life imprisonment i mposed on the accused/ appellants is, accordingly, modified to sentence of R.I. for five years. The sentence of fine is maintained. 12. The appeal is partly allowed as indicated above. The conviction recorded and the sentence imposed on the accused/ appellants by the learned Tria l Court is modified in terms of the above.