Crl.A. 266/2003 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. B.D. Konwar, learned Counsel appearing for the appella nt. The State is represented by Mr. B.B. Gogoi, learned Addl. Public Prosecutor. 2. This appeal is presented against the judgment dated 31.3.2003 in Sessions Case No. 166(S-S)/2001 rendered by the learned Sessions Judge, Sivasa gar, whereby the appellant was convicted under Section 304 Part-I of the IPC and has been sentenced to undergo Rigorous Imprisonment (R.I.) for 5 years and to p ay a fine of Rs.1,000/-, in default of payment of fine, further R.I. for 2 month s. 3.1 An FIR was lodged at 9:00 P.M. on 12.8.2001 in the Nazira Police Station with the information that there was a quarrel around 7:00 P.M./7:30 P.M . on 12.8.2001 between Munsi Tanti and Ajit Bhuyan and during the quarrel a dao blow was given to Munsi Tanti, who expired while being shifted to the Civil Hosp ital, Sivasagar. The accused, Ajit Bhuyan was rounded up and also sent to the police Station. After the FIR was received from the Assistant Manager of Madoori e Tea Estate, the Nazira P.S. Case No. 70/2001 under Section 302 of IPC was regi stered and the criminal process was set in motion. 3.2 The Sub-Inspector, Mr. B.K. Saikia of Nazira Police Station as t he investigating officer of the case visited the place of occurrence, recorded t he statement of witnesses and also arranged for the inquest and post-mortem exam ination. He also formally arrested the accused and seized the offending weapon vide Exbt.2. As the case was exclusively triable by the Court of Sessions, it was committed by the learned Chief Judicial Magistrate, Sivasagar, vide his orde r dated 15.12.2001 and the accused was charge-sheeted under Section 302 of IPC i n the Sessions Court. As the accused pleaded innocence, the case was put to tria l. 4. The prosecution examined as many as 11 witnesses whereas no evid ence was adduced by the defence. In his 313 CrPC statement, the accused denied t hat he murdered Munsi Tanti but admitted that together they used to collect drif ting firewood from the river and that the collected firewood was stacked in fron t of his house. However, the accused denied that he murdered Munsi Tanti. 5. PW1 (Suresh Kumar Tapadia), was the Assistant Manager of the Mad oorie Tea Estate. On the date of incident, he was informed by the garden chowkid ar and 2/3 others that there was a quarrel between the accused and the deceased and thereafter Munsi Tanti was brought in an injured condition. The Asstt. Manag er sent the injured to the Sivasagar Civil Hospital in a garden vehicle but, lat er he learnt that Munsi Tanti died at the hospital. Within about an hour of the incident, the Village Defence Party (VDP) brought the accused along with a ’dao’ and thereafter the PW1 had lodged the FIR. 6. PW2, Purna Garh was the VDP Secretary of the Tea Estate and used to reside in the same labour line, as the deceased. He was informed by Lakhi T anti (PW5), father of the deceased that Munsi was killed by the accused. He vis ited the Doctor’s residence where he learnt that the injury was grievous and he requested the Manager of the Tea Garden (PW1) to provide a vehicle to send the i njured to the Civil Hospital. After shifting the injured Munsi Tanti to the hos pital, he along with his colleagues apprehended the accused along with a dao and took him first to the office of the Garden Manager and then he took the accused to the police station. The police formally arrested the accused and seized the dao in presence of the PW2 and seizure Memo (Exbt.2) was witnessed by him. Th e witness learnt later that the accused and the deceased quarreled when the accu sed attempted to sale the collected logs surreptitiously. In his cross examinat ion, PW2 stated that the accused gave himself up without protest to the VDP and the others and the offending weapon was brought out himself by the accused from inside his house. 7. PW3 and PW4 are the 2 cousin brothers of the accused and reached the place of occurrence only after the assault was over. PW4, however, stated that he saw the accused being taken away by the VDP. The witness testified tha t the accused confessed while being escorted that, he had assaulted Munsi Tanti. 8. PW6 accompanied the VDP Secretary (PW2) to the police station to handover the apprehended accused. He also stated that a dao was also deposited at the police station. 9. PW7 (Ananda Garh) was another tea garden labour, who was with th e VDP Secretary (PW2), when the accused was apprehended and was handed over to t he police. 10. PW8 (Sunil Khargabangshi) was a neighbour. He along with the acc used and with the deceased and Ajay Garh as a four member team, used to collect drifting firewood from the nearby river Namdam. On the day previous to the incid ent, the firewood collected by the team was stacked in the compound of the accus ed with the understanding that it would be distributed amongst all four of them on the next day. But, he learnt the next morning that the accused had killed Mu nsi Tanti. 11. PW9 is Dr. Ranjit Kumar Hazarika, who was the Senior Medical and Health Officer of the Sivasagar Civil Hospital. He conducted the postmortem on the body of the deceased on 13.8.2001 and recorded one incised wound of the size of 2 X … X muscle-deep, near the root of the neck on the left side. In his cross-examination, he admitted that in the postmortem report he did not mention that the death was a homicidal one . 12. The only eyewitness of the occurrence was PW5 (Lakhia Tanti), wh o was living together with his deceased son (Munsi Tanti) at Madoorie Tea Estate , Labour quarter. The accused, Ajit Bhuyan was his nearest neighbour, separated by a garden path. According to the witness, the accused called the deceased and dealt at dao blow in front of the house of the accused. The witness saw from a d istance of one ’nal’ (12 feet), the accused assaulting his son on the neck with a dao. The witness raised alarm and several others including PW4 came running t o the place of occurrence and arranged to shift his injured son for medical trea tment. The witness was amongst those who apprehended the accused from his house . According to PW5, the deceased and the accused had collected driftwood toget her from the river but the accused misappropriated the proceeds. The accused the n called the deceased to square the account and instead he gave fatal blow to th e deceased. In his cross-examination, the witness admitted that his eyesight is poor but he denied the suggestion that he did not see the assault and had depose d falsely. 13. Mr. Konwar argues that the conviction of the appellant should no t be sustained on the testimony of the single eye-witness i.e. PW5 as because it was evening time and PW5 himself had admitted that his eyesight is poor. But i t this context it must be borne in mind that the witness saw the incident from a distance of only about 12 feet and there is nothing to show despite his poor ey esight that, he was incapable of identifying his nearest neighbour from that sma ll distance. In any case, it is hardly probable that the witness would name the accused, without actually seeing the assault. 14. The collection of the drifting firewood together by the accused and the deceased and that the collected firewood was stacked in the house of the accused, was proved by the PW8. A motive for the crime is also indicated inasm uch as the accused tried to surreptitiously sale the collected firewood to deny the others, their respective shares of the proceed. 15. Considering the backdrop of the incident and the evidence in the case, the involvement of the accused with the assault on the deceased is found to be proved beyond reasonable doubt. Although there is some minor variation in the evidence of the eye-witness as to whether he was in the Veranda or inside hi s house, when the quarrel started, I feel that such minor variation on the recol lection of the witness, can have no bearing on the veracity of what the witness testified as the eye-witness to the crime. 16. The counsel for the appellant additionally submits that the accu sed did not have the intention of causing the death of the deceased and the blow might have been struck by him in the heat of passion as because, the deceased m ight have charged the accused of usurping the proceeds of the firewood. For co nsidering whether murder was intended, the evidence of postmortem report(Exbt.4) is relevant as it shows that the death was caused due to shock and haemorrage, as a result of ante-mortem injury. But in the postmortem report, the doctor had not stated that the injury was homicidal and this vital omission is admitted by the doctor, in his cross-evidence before the Court. It must also be noted that although the weapon of assault has been described as a dao, the seizure list (E xbt.2) shows that it is not a normal size dao, but was a common tea estate imple ment called ’Kalamkata dao’, which is a smaller in size than a normal dao. 17. Considering the choice of weapon and also the fact that a single blow was given, and further the fact that the injury was not described by the d octor as homicidal, it is quite possible that the accused had not intended to ca use the death of the deceased. The conduct of the accused is also relevant as t he accused did not flee from the scene of crime, and was found inside his house and gave himself up peacefully. Therefore, it is not unlikely that the accused had not intended to cause death and he might have been under the impression that he had not given any fatal blow on his friend. In such circumstances, I feel t hat the submission of the learned counsel that the appellant had no intention to cause death, is found to have merit. Accordingly, in the absence of intentio n, the conviction under Section 304 Part-I of IPC is held to be unjustified. Bu t since evidence shows that the single blow given by the appellant has caused th e death, I feel that the accused should be convicted under Section 304 Part-II o f the IPC. 18. For his conviction under Section 304 Part-II of IPC, considering the quarrel which preceded the assault, the nature of the weapon used and also the single blow struck, I feel that a sentence of 2 years Rigorous Imprisonment (R.I.) would be sufficient punishment for the crime. Accordingly, the accused a ppellant is sentenced to 2 years R.I. for his conviction under Section 304 Part -II of IPC. The benefit of set off for the time spent in custody, should be give n to the appellant. 19. In the result, the appeal is allowed with the above modification of the impugned conviction and sentence. LCR be returned forthwith.