Crl.A. 14/2004 BEFORE THE HON BLE MR. JUSTICE BD AGARWAL JUDGEMENT AND ORDER (ORAL) This appeal is directed against the judgment and order dated 12.12.2003 passed by the the then learned Sessions Judge, Cachar in Sessions Case No. 100/2 001 under Sections 232/34 of Indian Penal Code. By the impugned judgment, the l earned Sessions Judge has convicted the appellants under Section 323 read with S ection 34 of the IPC and they were sentenced to undergo RI for one year and also to pay fine of Rs. 1,000/-each, in default to further RI for one month. 2. Being aggrieved with the conviction and sentence, the accused persons ha ve preferred this criminal appeal. 3. Heard Mr. SC Biswas, learned counsel for the appellants and Mr. BB Gogoi , learned Addl. PP, Assam. I have also gone through the impugned judgment as wel l as the prosecution witnesses tendered in the trial court. No defence plea was taken by the accused persons and no evidence on defence was also given by them i n the trial. 4. From the evidence on record, I find that altogether 12 witnesses were examined by the prosecution, out of these 12 witnesses, PW 11 is the Investigati ng Officer and PW 12 is the Autopsy Doctor and all the remaining 10 witnesses a re independent witnesses from the locality. Out of 10 witnesses also, the deposi tion of PW 1 and PW 2(brothers of the deceased) may be left out of consideration since they were reported about the incident subsequently. Similarly, PWs 8,9 an d 10 are formal witnesses of the inquest and the seizure. However, according to these witnesses, the dead body was lying in the courtyard of the appellant No.1, namely Bakul Malakar and the seized weapons were also recovered from his house. 5. Remaining witnesses i.e., PWs 3,4,5,6 and 7 are independent witnesses. P W 3 and PW 6 saw the accused persons assaulting the deceased with a torch light and wooden clubs and the incident took place in the house of the appellant No.1. PW 5 has deposed that one day prior to the incident, the appellant No.1 came to his house and reported that some articles were stolen from his house and as suc h he was looking for the deceased. It may be mentioned herein that at the releva nt time, the deceased was working as day labourer in the house of the accused No .1. PW 6 has deposed that the accused No.1 was searching for the deceased. PW 6 has also deposed that he heard the cries from the house of appellant No.1 and wh en he went to the house of appellant No.1 he saw the appellant No.1 assaulting t he deceased. Next day, the incident was reported by the wife of the appellant No .1 about the death of Kishan Lohar. PW 7 has also deposed that his truck was sto pped by the appellant No.1 telling that he caught a thief and he should be taken to the police station. Then PW 7 went to the house of the appellant No.1 and sa w the deceased lying in his verandah in an unconscious condition and subsequentl y the injured person died. 6. From the aforesaid evidence of independent witnesses, it is apparently c lear that the appellant No.1, Bakul Malakar was entertaining grudge against the deceased suspecting him to have stolen some household articles. Besides this, he appears to be the principal assailant. Be that as it may, according to PW 7, th e other accused persons had also taken part in the assault. Hence, I do not find any difficulty to affirm the impugned judgment holding that all the appellants were involved in the incident. 7. Although the appellants were tried for an offence of murder but subseque ntly they have been convicted under Section 323 r/w Section 34 of the IPC on the ground that the Medical Officer did not opine that the injuries were fatal in n ature. The learned Sessions Judge has also further held that from the cumulativ e evidence of independent witnesses and the medical findings the accused persons had no intention to commit murder or that the injures were likely to cause deat h of the person in ordinary circumstances. 8. From the medical evidence it appears that one abrasion was found on the backside of thorax and there was also an injury on the spleen. As per the medica l findings there was haemorrhage in the spleen due to the leakage of approximat ely 1 litre of blood. Doctor further found that the spleen was slightly enlarged . At the same time the Doctor has also opined that the spleen cannot rupture due to simple fall on the ground. Be that as it may, there is no evidence on record that the deceased was suffering from any disease, related to enlargement of the spleen or that the deceased was under any medication. Hence, it appears to me t hat the spleen must have ruptured due to hitting of the spleen by a blunt weapon . On this ground also the conviction cannot be interfered with by this court. 9. With regard to the quantum of sentence, Mr. Biswas, learned counsel subm itted that in view of the minor injuries, inflicted upon the deceased, the sente nce should be reduced. I have already observed hereinabove that the learned Sess ions Judge has already given the maximum benefit by bringing down the offence fr om Section 302 to 323 IPC. Besides this, since the deceased died almost instanta neously due to physical assault, no further concession can be given at least to the appellant No.1, Bakul Malakar, who appears to be principal assailant and as such his sentence of one year RI with fine of Rs.1,000/-, as awarded by the tria l court is hereby maintained without any alteration. However, the other appellan ts namely, Sanjoy Das, Dhirendra Das and Akshay Das had played secondary role in the assault and as such their sentence is reduced to 4 (four) months RI. Howeve r, the amount of fine, as awarded by the trial court is hereby maintained. 10. Registry is directed to transmit a copy of this judgment to the trial co urt immediately and on receipt of the same, the trial court shall issue modified custody warrant with regard to the appellant Nos. 2,3 and 4. The appellants are directed to surrender in the trial court within a month from to-day failing whi ch the trial court shall take necessary steps to take the convicts into custody. 11. With the above directions, this criminal appeal stands disposed of.