Crl.A. 120/2003 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY HON’BLE MR. JUSTICE A.C.UPADHYAY JUDGMENT & ORDER (ORAL) Amitava Roy, J In challenge is the judgment and order dated 29.11.2002 passed b y the learned Sessions Judge, Dhemaji in Sessions Case No. 86(DH)/2001 convictin g the accused/appellant under Section 302 of the Indian Penal Code (for short, h ereinafter referred to as ’the Code) and sentencing him to suffer imprisonment f or life and to pay a fine of Rs. 3000/-, in default, to undergo rigorous impriso nment for another six months. 2. We have heard Mr PJ Saikia, learned counsel for the accused/appe llant and Mr D Das, learned Public Prosecutor, Assam. 3. On the records laid before this Court the prosecution case is tr aceable to the FIR dated 20.9.2001 lodged by one Sri Rabindra Barua with the Off icer-in-Charge, Bordoloni Police Out Post alleging that at about 7.30 p.m. of th e previous day i.e. 19.9.2001 the accused/appellant had assaulted his brother Mr idul Barua with a Kotari (sharp cutting instrument like a knife) in the back c ourtyard of the house of Sri Guna Kanta Barua and that the injured succumbed to the injuries sustained at 11.30 p.m. on the way to Gogamukh Hospital. On the bas is of the aforesaid FIR, Gogamukh P.S. Case No. 154/2001 was registered under Se ction 302 IPC and the investigation followed. The FIR (Exhibit-1) discloses furt her that the investigation in the case had in fact been taken up on the basis of BDL O.P. GDE No. 274 dated 20.9.2001 which had been forwarded to the Officer-in -Charge of Gogamukh Police Station . 4. On the completion of the investigation chargesheet was submitted against the accused/appellant under Section 302 IPC and he was made to stand tr ial as he denied the charge framed also on the basis of the said provision of th e Code. In course of the trial the prosecution examined as many as sixteen witne sses including the investigating officer and the doctor who had performed the po st mortem examination on the deceased. On the closure of the evidence of the pro secution the accused/appellant was examined under Section 313 Cr.P.C. wherein he maintained the stand of his innocence. He, however, did not adduce any evidence in defence. The learned Trial Court on a consideration of the evidence on recor d convicted and sentenced him as above. 5. Before adverting to the rival submissions, it would be appropria te to make a brief survey of the evidence adduced by the prosecution in support of the charge. P.W.1, Rabindra Baruah, the informant, stated on oath that on 19 .9.2001 at about 8.30 p.m. his cousin brother Bipin Baruah informed him over tel ephone that the accused/appellant had seriously injured his brother Mridul Barua h (deceased) by assaulting him with a ’Kotari’ in the courtyard of Guna Baruah, their uncle. On receipt of the said information, according to this witness, he s tarted for the place of occurrence and met the injured who was then in the proce ss of being taken to the hospital in a car. The witness stated that the injured was first taken to the Bordoloni Government Hospital, whereafter, on medical adv ice and for better treatment he was decided to be shifted to the Gogamukh Hospit al. According to this witness, Dr. Pranab Hazarika who attended on the injured a t Bordoloni Government Hospital recorded the dying declaration made by the injur ed in course of which he disclosed that he had been assaulted by Padmeswar ’Kera ni’. The injured also asked for water. The witness stated that the injured, howe ver, succumbed to his injuries at about 11.30 p.m. on his way to the hospital. H e proved the FIR (Exhibit-1) claiming it to be filed by him at Bordoloni Police Out Post. He also proved the inquest report (Exhibit-2) and the seizure of the w earing apparels of the deceased vide Exhibit-3. The witness identified the vest of the deceased to be Mat. Exhibit-1 and the Gamosa (Mat. Exhibit-2). He further stated that the accused/ appellant had handed over a ’Kotari’ to the police pro ducing it from his house. He proved the seizure thereof vide Exhibit-4 and also identified the weapon as Mat. Exhibit-3. In cross-examination, this witness asserted to be present when t he dying declaration of the deceased was recorded by the doctor at the Bordoloni Govt. Hospital. In particular, he stated that at that time the deceased was in a position to talk. He, however, admitted to have omitted to mention about the r ecording of the dying declaration before the police as well as in the FIR. 6. P.W.2, Smt. Kiran Baruah identified the accused/ appellant on th e dock and deposed that on 19.9.2001 at about 7.30 p.m. while she was in the kit chen of her house she heard a sound coming from outside. As she came out to asce rtain the source of the sound with a lamp in her hand she found Mridul (deceased ) and Padmeswar (accused/appellant) ’fighting’ in the back courtyard. According to this witness, she then called Akon Konwar (P.W.3) also to witness the happen ings. She further stated to have seen the accused/ appellant inflicting cut inju ries on the deceased with a knife stating that though he intended to finish him the assault would be enough. This witness stated that on being so assaulted the deceased implored for water and subsequent thereto fell down on the ground. The witness stated on oath that when asked, the deceased disclosed that the accused/ appellant had assaulted him. This witness stated to have seen injuries on the r ight hand and chest of the deceased. In cross-examination, this witness divulged that their family wa s ostracized by the society as the incident had happened in their campus. She cl aimed to have identified two persons in the back courtyard in the light of the l amp that she was carrying. She affirmed in her cross-examination as well to have seen the deceased and the accused/ appellant assaulting each other with fists a nd blows and that in course thereof the latter had whipped out a knife and assau lted the former. She denied the suggestion made by the defence that during the i ncident the deceased had sought for a ’dao’ and that it was provided by her to h im. She also denied the suggestion that she and the deceased had in fact assault ed the accused/ appellant with a ’dao’ and a ’Kotari’. 7. P.W.3, Smt. Akon Konowar deposed that on the date of the occurre nce i.e. 19.9.2001 at about 7.30 p.m. she was in the house of her sister Kiron B aruah (P.W.2). She stated to have heard a noise outside following which her sist er came out with a lamp to find out the reason of the sound. According to this w itness, Kiron re-entered the room and proceeded towards the well. This witness s tated that she did not see anything outside. This witness was declared hostile b y the prosecution and was confronted with the statements made by her before the police under Section 161 Cr.PC. narrating the incident that had happened. She, h owever, owned her statement made before the Magistrate to be Exhinit-5 with the signature thereon. In her cross-examination, she, however, mentioned about the p resence of two persons fighting in the back courtyard of the house but stated th at she could not see them. 8. As the evidence of P.W.4, 5,6,7,8,9, 10, 11, 12 and 13 is not of any decisive bearing on the issues in the present appeal, it is not considered essential to elaborate on their statements made at the trial. 9. P.W.14, Dr. Dilip Kr. Gogoi who had performed autopsy on the dea d body stated to have detected the following injuries thereon:- 1. A fresh sharp cut injury on the right side of the chest starting from intrac lavicular lateral margin of clavicle extending down and medially towards yiphist ernum 8.5 inches long and 1.5 inches wide with tailing of the wound over yipiste rnum with exposure of the peetoralis major muscle with upper side. 2. A fresh deep cut injury on medial aspect of right arm 2 above elbow joint 3. 5 inches long 2 inches wide with severing of brachial artery, nerve and biceps b rashi-muscle. 3. A laceration mark on right arm, deltoid area 3 (inches) long down and oblique and anteriorly. . This witness opined that the death had occurred due to haemorrha ge following sharp cut injuries specially described in injury No.2. He proved th e post mortem report as Exhibit-7. 10. P.W.15, Dr. Pronab Hazarika stated on oath that on 19.9.2001 he was attached to Bordoloni PHC as Medical & Health Officer-1 and that at about mi dnight he had examined Mridul Barua who had been brought to the hospital in a ca r. He testified to have detected two cut injuries on the body i.e. (i) over the right side of the chest, and (ii) over the anterior aspect of right arm. This wi tness stated that the injured was found to be severely anaemic and seeing that h is condition was serious and that as necessary treatment to him was not possible due to lack of facilities in the PHC, he advised him to be shifted to the Gogam ukh Hospital for better management and treatment. This witness, however, stated that during the examination of the injured the latter had spoken to him as hereu nder:- Give me water, give me water, my mouth is getting dry, give me water........... .Sir, I got cut, Padmeswar Kerani has cut me, my stomach is aching. . This witness proved his medical report (Exhibit-8) with the abov e findings and recordings. 11. P.W.16, Hemanta Bora, the Investigating Officer, narrated the st eps taken by him in course of the investigation. It would be clear therefrom tha t he had initiated the investigation on the basis of a verbal information lodged with the Bordoloni Police Out Post on 19.9.2001 by one Bipin Barua and that by the time the FIR was lodged he had visited the place of occurrence, conducted in quest on the dead body, dispatched the same for post mortem examination and reco rded the statements of the witnesses. The Investigating Officer further stated t o have seized a ’Nalia-Katari’ produced by the accused/ appellant in course of h is investigation which he seized vide Exhibit-4. He stated to have prepared a no te of the statement made by the accused/ appellant that he had cut the deceased with the said weapon of assault. This witness also claimed to have recorded the statement of the accused/ appellant in details with regard thereto and proved th e note prepared by him and the statement of the accused/appellant as Exhibit-10 and 11 respectively, This witness identified the weapon of assault to be Mat. Ex hibit-3. The seizure of the wearing apparels of the deceased was also proved. He , however, admitted that though there was a mention about the GD Entry in the Ca se Diary, he had not proved the same. 12. Mr Saikia in the backdrop of the above evidence has assertively urged that the testimony of P.W.1, 2 and 3 is contradictory on material particul ars and that the prosecution having failed to prove the charge against the accus ed/ appellant, he is entitled to be acquitted. As the prosecution has failed to provide any acceptable explanation for the omission to mention about the dying d eclaration in the FIR as well as in the statement of the so- called eye witness in course of the investigation, the deposition to that effect made by P.W.15 is of no probative value, he urged. The learned counsel also sought to discredit P. W. 2 and 3 on the basis of their statements made under Section 164 Cr.PC. conten ding that the two versions are incompatible. Mr Saikia has sought to impress upo n us that the eye witnesses of the prosecution having failed to identify the acc used/ appellant to be the assailant, his conviction is wholly untenable in law. According to him, the purported extra judicial confession made before the police is inadmissible in law. Further, Exhibit-10 and 11 not only are bereft of any p robative value, the same per se do not establish Mat. Exhibit-3 to be the weapon of assault. In absence of any nexus between the incident, the accused/ appellan t and the ’Nalia-katari’ seized by the police, the impugned judgment and order i s patently illegal and liable to be interfered with, he maintained. Without prej udice to the above, Mr Saikia has urged that even assuming that the involvement of the accused/ appellant has been proved by the evidence on record, having rega rd to the injuries sustained by the deceased, no intention of murder can be attr ibuted to him and that, therefore, as meanwhile eight years have elapsed, he is entitled to be set free. 13. Mr Das, in reply, has urged that a conjoint reading of the testi mony of P.W.1,2 and 3 proves the charge levelled against the accused/ appellant and, therefore, no interference of this Court in the instant appeal is warranted . The dying declaration of the deceased as disclosed by P.W.1, 2 and 15 being wh olly reliable, the conviction of the accused/ appellant is justified in law, he urged. According to Mr Das, the identity of the accused/ appellant to be the ass ailant has been well established and that, therefore, the impugned judgment and order ought not to be interfered with. 14. We have lent our anxious consideration to the rival submissions advanced and the materials available. To start with, the FIR specifically menti ons the name of the accused/ appellant to be the assailant. The evidence of P.W. 1 appears to be relevant to the extent of the dying declaration said to have bee n made by the deceased to him disclosing that the accused/ appellant was the ass ailant. The testimony of P.W.2, Kiron Barua when read as a whole demonstrates th e involvement of the accused/ appellant in the acts of assault on the deceased i n clear terms. According to this witness, she on the date and the time of the oc currence had seen the deceased and the accused/ appellant fighting with each oth er in her back courtyard in course of which the accused/ appellant had assaulted the deceased with a knife following which he fell down on the ground. She also is a witness to the dying declaration that was made by the deceased to her impli cating the accused/ appellant to be his assailant. This witness specifically sta ted about the two injuries suffered by the deceased which stand corroborated by the post mortem report. There is apparently no reason to disbelieve this witness as not only she reiterated a number of times with regard to the identity of the persons in the back courtyard which she could make out on the light of the lamp that she was carrying, she also consistently identified the accused/ appellant to be the assailant of the deceased. The evidence of P.W.3 taken as a whole thou gh not fully in alignment with the testimony of P.W.2, it is apparent therefrom that on the date and at the time of the incident two persons were present in the back courtyard of P.W.2 fighting with each other. To that extent the presence o f the accused/ appellant as narrated by P.W.2 and his complicity as the assailan t of the deceased stands corroborated. 15. Though the learned counsel for the appellant has been strongly c ritical about the acceptability of the evidence of P.W.15 vis-a-vis the dying de claration said to have been recorded by him, in absence of any overwhelming infi rmity making the same wholly unreliable or inadmissible in law, we find no reaso n to discard the same in toto. We are not inclined, however, to take note of the extra judicial confessions referred to by the witnesses as those were made in p resence of the police. However, the fact that a ’Nalia-Katari’ had been seized b y the Investigating Officer on being produced by the accused/ appellant has its own relevance. In the above view of the matter, on a conjoint consideration of t he evidence on record, we are of the unhesitant opinion that the prosecution has been able to prove the complicity of the accused/ appellant in the offence with which he has been charged. 16. This takes us to the plea taken on his behalf about the lack of intention in committing the murder. The post mortem report discloses that the de ceased had suffered a sharp cut injury on the right side of the chest measuring 8.5 inches long and 1.5 inches wide as well as a deep cut injury on the right ar m 2 inches above elbow joint 3.5 inches long and 2 inches wide severing the brac hial artery, nerve, biceps and brachi-muscle. The eye witnesses of the prosecuti on noticeably have testified about an on-going quarrel and a fight between the a ccused/ appellant and the deceased before the former had taken out a knife to in flict cut injuries on the latter. The evidence of P.W.2, in particular, is to th e effect that when she came out tracking the noise emerging from the back courty ard of her house she had seen the accused/ appellant and the deceased assaulting each other with fists and blows. It is, thus, not unlikely, in our comprehensio n, that in the heat of the moment and being deprived of the power of self-contro l, the accused/ appellant had assaulted the deceased with a knife which had been in his possession. Going by the injuries inflicted by the accused/ appellant, w e are constrained to hold that having regard to the weapon of assault then in hi s possession and the enraged state of mind, he could not be said to have been se ized with the intention of eliminating the deceased by his assaults. The injury on the chest, as the post mortem report discloses, is not the direct and immedia te cause of death. In fact, the post mortem report reveals that the death had oc curred due to haemorrhage following sharp cut injuries specially injury No.2 wh ich apparently was on the right arm of the accused/ appellant. In the above prem ise, having regard to the factual background and the sequence of events leading to the incident, we are of the opinion that the accused/ appellant cannot be hel d guilty of the offence of murder under Section 302 of the Code. 17. We, thus, conclude that in the facts and circumstances of the ca se, the accused/ appellant is guilty of the offence of culpable homicide not amo unting to murder. As he lacked the intention of causing death of the deceased th ough he had the knowledge that the injuries caused by him were likely to cause d eath, we are of the view that his conviction under Section 304, Part-II of the C ode would suffice. Having regard to the facts impelling us to scale down the con viction of the accused/ appellant from Section 302 to Section 304, Part-II of th e Code, in our opinion, it would meet the ends of justice if the sentence theref or is restricted to the period already undergone by the accused/ appellant. Orde red accordingly. 18. The appeal is, thus, partly allowed. The accused/ appellant, as a consequence, would be released forthwith.