Crl.A. 20/2008 BEFORE THE HON’BLE MR. JUSTICE C.R. SARMA Heard Ms. B. Sarma, learned counsel for the appellant as well as Mr. K. Munir, l earned Addl. P.P., Assam. 1. This appeal is directed against the judgment and order dated 18.12.2007 passed by the learned Sessions Judge, Nalbari in Sessions Case No. 16/2004. By t he impugned judgment and order, the learned Session Judge has convicted the accu sed/appellant under Section 326/304 Pt.II IPC and sentenced him to undergo impri sonment for a period of six years and pay a fine of Rs. 2000/- in default to und ergo imprisonment for another period of six months for his conviction under Sect ion 304 Pt.II IPC and also to suffer imprisonment for three years and pay fine o f Rs. 2000/- in default suffer further imprisonment for a period of six months f or his conviction under Section 326 IPC. It has been directed that both the sent ences would run concurrently. Being aggrieved by the said conviction and sentenc es, the accused/ appellant has come up with this appeal. The facts of the prosec ution case, in brief, may be stated as follows: 2. On 27.8.1998, at about 7 PM, the villagers of No. 2 Hauli (Deulguri) vil lage assembled in connection with a complaint, lodged by Smt. Hiran Bezbaruah ag ainst the appellant. Accordingly the villagers deputed Sri Kushal Bezbarua (here inafter referred to as the deceased) and Sri Dipak Bezbarua (injured) to bring t he appellant to the meeting from his house. On being so instructed, the deceased along with Sri Dipak Bezbarua went to the house of the appellant, wherein the a ppellant assaulted them with a sharp weapon causing serious injuries to their pe rsons. The injured persons were initially taken to the Tamulpur PHC, where from they were referred to Gauhati Medical College & Hospital (GMCH) for better treat ment. The deceased, while undergoing medical treatment, succumbed to his injurie s on the next date i.e. on 28.8.1998 and Shri Dipak Bezbaruah recovered after un dergoing treatment for about 15 to 20 days, as an indoor patient in the GMCH. Sr i Suven Bezbaruah, who was the brother of the deceased, informed the police by s ubmitting an FIR with the Officer-in-Charge of Tamulpur Police Station. 3. The police initially registered a case under Section 326/324 IPC and con sequent upon the death of the deceased, offence under Section 302 was added. At the close of investigation, the police submitted charge sheet against the appell ant for the offences under Sections 325/302 IPC and the case was committed to th e Court of learned Sessions Judge. The learned Sessions Judge framed charges und er Section 325/326/302 IPC. The charges were read over and explained to the accu sed/appellant to which he pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution examined as many as 10 witne sses including the Medical Officers and the Investigating Police Officer. At the close of the evidence for the prosecution, the accused person was examined unde r Section 313 Cr.P.C.. He denied the allegations, brought against him and pleade d that the deceased, along with Sri Dipak Bezbaruah and Sri Suven Bezbaruah, bei ng armed with ’dao’ and ’lathi’ etc., visited his house and dragged him out ther e from. He further stated, in his statement under Section 13 Cr.P.C.,that the sa id persons had assaulted him and that he rushed to the hospital for medical trea tment. In support of his contentions, the accused person examined as many as 6 w itnesses including himself. Considering the evidence on record, learned Sessions Judge found the accused person guilty under Section 326 and 304 Part-II IPC and convicted and sentenced him as aforesaid. 5. Ms. B. Sarma, learned counsel appearing for the appellant has submitted that the learned Sessions Judge committed error by awarding the conviction and s entence without sufficient and cogent evidence against the appellant and as such the conviction and sentences are liable to be set aside and quashed. 6. Learned counsel for the appellant has further submitted that injured Sri Suven bezbaruah,( PW-1) and Sri Dipak Bezbaruah, (PW-10), being armed with ’dao ’ and ’lathi’, went to the house of the appellant and dragged him there from aft er assaulting him. Learned counsel for the appellant further submitted that due to the said assault, committed by the aforementioned persons, scuffle had taken place between both the parties, in which the deceased and Sri Dipak Bezbaruah su stained injuries and that there was no fault on the appellant. It is also submit ted that the appellant, at no point of time, had assaulted or attacked the decea sed and the injured person, but the deceased and the injured person had trespass ed into the premises of the appellant and attempted to forcefully dragged him to the alleged village meeting, without any authority of law. 7. Supporting the impugned conviction and sentence, learned Additional P.P. has submitted that there is sufficient evidence against the appellant and that the prosecution has successfully established that the appellant had assaulted th e deceased and PW 10 without any provocation. Learned P.P. has also submitted th at the learned Sessions Judge has rightly convicted and sentenced the accused ap pellant and as such the impugned judgment and order does not require any interfe rence. In order to appreciate rival arguments, advanced by the learned counsel for the parties and to examine the correctness of the impugned judgment and order I feel it appropriate to scan the evidence on record. 8. Dr. Hari Mohan Kalita, who examined Sri Dipak Bezbaruah and the deceased on 27.8.1998 i.e. on the day of occurrence, deposed as PW-4. The Medical Office r, opined as follows - On 27.8.98 I was at Tamulpur PHC. On that day I examined Dipak Bezbaruah of vil lage Barigaon and found as follows: A lacerated wound in left side of forehead extending from frontal bone to occipi tal bone. 5 x3 x2 . Skull bone is also cut and a definite gap is found. Impression - grievous injury caused by blunt weapon. Injury is fresh in nature. On that day I also examined Kushal Bezbaruah aged about 16 years and found as fo llows: 1. Incised wound in occipital area of head. Size 5 x3 x1/2 2. Occipital bone is also cut. 3. Lacerated wound in left area 4 x2 x1 . 4. Lacerated wound in right forearm. Size 4x1/2 x1/2 Impression: grievous injury caused by sharp weapon. Injury is fresh in nature. Both patients are referred to GMCH for further treatm ent. Ext.2 is my report, 2(1) is my signature. 9. PW-9 Dr. Kalicharan Basumatary performed autopsy in respect of dead body of Kushal Bezbaruah (deceased) on 28.8.1998. The said Medical Officer opined th at the cause of death of the deceased was ’coma’ resulting from the head injury. All the injuries were antemortem, caused by heavy sharp cutting weapon and homi cidal in nature. 10. From the above medical evidence, it is clear that the deceased died due to the injury sustained on the previous day i.e. 27.8.1998. 11. Sri Dipak Bezbaruah, who was one of the injured, deposed as PW-10. He st ated that, on 27.8.1998, at about 7 PM, a meeting was held in their village and as per the decision of the said meeting, he along with the deceased went to the house of the appellant to call him to the meeting. He further stated that as soo n as they had appeared in the house of the appellant, the latter had assaulted t hem causing injuries to their persons. According to this witness, he became unco nscious at the place of occurrence and subsequently he came to know that the dec eased succumbed to his injuries. This witness was duly cross examined on behalf of the defence, but no material contradiction was established. There is no dispu te that the deceased died on the following day of the occurrence i.e. after sust aining the injuries in the alleged occurrence. Therefore, it is established that both the deceased and the PW 10 sustained the injuries in the occurrence, which took place in the premises of the appellant. 12. In support of the evidence of PW 10, Sri Suven Bezbaruah(PW-1), who lodg ed the FIR, stated that the village meeting had deputed the deceased and PW-10 t o call the appellant to the meeting and accordingly they went to the house of th e appellant. He further stated that, the appellant, finding the said persons in his house, had assaulted them by means of a ’khookri’ (sharp weapon). He further stated that PW-10, who sustained injury, had to undergo medical treatment for a bout 15 days and that the deceased succumbed to his injuries on the next day. 13. In tune with the evidence of PW-1 and PW-10 Mr. Basanta Bezbaruah(PW-2) also stated that the injured Dipak Bezbaruah and the deceased were deputed by th e villagers to bring the appellant to the village meeting and that the appellant had assaulted them, causing injury to their persons. 14. PW-3 Sri Madhu Bezbaruah, supporting the evidence of PW 1 and 2 stated t hat the villagers had sent the deceased and Sri Dipak Bezbaruah (PW-10) to call the appellant and that they sustained injury at the hand of the appellant. 15. Sri P. Baruah, who deposed as PW-5, stated that the deceased and the PW- 10 sustained injury and they were taken to the hospital for treatment. PW-6 and PW-7 both police officers, took steps for postmortem examination of the dead bod y of Kushal Bezbaruah. 16. PW-8 was the investigating police officer. He stated that he recorded th e statement of the witnesses and forwarded the injured persons to the GMCH. 17. Sri Madhab Mazumdar, who was examined as DW 2, has stated that at the ti me of occurrence, he was sitting in the Veranda of the appellant and at that tim e the deceased, PW 10 and Suven Bezbaruah went to the house of the appellant and they dragged him out and assaulted. He further stated that PW 2 had also given a slap on his check. According to this witness, PW 10, and the deceased were arm ed with ’dao’. PW 10 who went to the house of the appellant to fetch him to the meeting, admitted the presence of Sri Madhab Mazumdar in the house of the appell ant at the time of occurrence. Therefore, there is sufficient force in the conte ntion of DW-2 that he was present at the time of alleged occurrence. According t o DW 2, i.e. Sri Madhab Bezbaruah, he fled the place of occurrence and as such d id not see the subsequent occurrence, in which the deceased and the PW 10 sustai ned injuries. Supporting the defence version, the appellant, who examined himsel f as DW 1, stated that, while he was at his residence, the deceased, PW 10 and a nother boy, being armed with ’dao’, dragged him out from his house and assaulted him. He further stated that ,in order to save himself, he had run away from the place and informed the police. DW 3 Smt. Hiran Bezbaruah, who is the wife of th e appellant, stated that the deceased, Sri Dipak Bezbaruah and Sri Suven went to their house and dragged out her husband for which she objected. She also stated that the said persons had assaulted her. Sri Jatin Bezbaruah, who deposed as DW 4 stated that he saw Dipak Bezbaruah, the deceased and Suven assaulting the app ellant in his house and that he and Smt. Hiran Bezbaruah tried to resist the sai d persons, as a result of which he sustained injury on his leg elbow. He further stated that at that time, Sri Madhab Bezbaruah, (DW 2) was also present in the house of the appellant. Dr. Hari Mohan Kalita, who examined the appellant and hi s wife stated that he found lacerated injury in respect of Smt. Hiran Bezbaruah. According to this witness, no injury was found in respect of appellant i.e. Nri pen Bezbaruah, on 28.8.1998. From the said medical evidence, it appears that Smt . Hiran Bezbaruah i.e. the wife of the appellant sustained injury. Therefore, th ere is force in the contention of Smt. Hiran Bezbaruah that she sustained injury , while resisting the PW-10 and others. The defence witnesses were cross examine d by the prosecution and no material contradictions could be established. Considering the entire evidence on record, it is found that the deceased, Sri Di pak Bezbaruah i.e. PW-10 and Sri Suven Bezbaruah went to the house of Sri Nripen Bezbaruah i.e. the appellant and attempted to take him to the village meeting. Admittedly the appellant was not a willing party to participate in the said meet ing. Therefore, there is no difficulty in understanding that some sort of scuffl e had taken place, amongst the said persons. From the forceful evidence, given b y the prosecution witnesses, it has been clearly established that the injured i. e. PW-10 and the deceased sustained injuries at the hand of the appellant and th e deceased succumbed to the injury sustained by him. The Medical Officer, PW-4 h as also opined that Sri Dipak Bezbaruah sustained a cut injury with definite gap on his Skull bone. Admittedly the said injury was a grievous injury. 18. In view of the above discussed evidence, it is found that the prosecutio n could successfully establish that the accused/appellant committed the offence under Section 326/304 Pt.II IPC. Therefore, in my considered opinion, the learne d trial Judge committed no error by recording conviction under Sections 304 Pt.I I/326 IPC. In the statement, given before the learned Trial Judge, the appellant stated that he was a poor man, having 3 minor children, his wife and old ailing mother, who were dependent on him. From the evidence of PW 2, it appears that t he appellant was asked by the villagers not to visit the house of Smt. Padumi an d the appellant also assured the villagers not to do that. But, as revealed from the evidence of PW 2, after about 6 months, in connection with the marriage cer emony of the daughter of Padumi, the appellant recited religious book. Therefore , being aggrieved, the villagers convened a village meeting and sent the decease d and the PW-10 to bring the appellant to the meeting to face the villagers. Acc ordingly said injured person and the deceased went to the house of the appellant and they sustained the injuries, inflicted by the appellant, who was attempted to be forcefully taken to the meeting. From the evidence of the defence witnesse s it appears that the said two persons, who had gone to take the appellant, appl ied force as a result of which scuffle had taken place between them. Admittedly the appellant did not attack the deceased and the injured person for his any per sonal gain or to meet any previous grudge. The injured i.e. PW-10 in his evidenc e clearly stated that prior to the occurrence, there was no enmity with the appe llant. In view of the above, it appears that the appellant was a victim of the c ircumstances. It is submitted, at the bar, that the appellant has already underg one imprisonment for a period of 3 years 8 months 5 days. 19. Considering entire aspect of the matter and the social life enjoyed by t he appellant, prior to the occurrence, I am of the opinion that the appellant ha s already suffered a lot. Therefore, in my considered opinion, ends of justice w ould be met if some lenient view is taken in respect of the sentence of the appe llant. Accordingly, the sentence of imprisonment of six years, as awarded by the learned Trial Judge under Section 304 Part II IPS, is modified as the period al ready undergone by the appellant and the appellant is directed to pay fine of Rs . 500/- instead of Rs. 2000/- in default suffer imprisonment for a period of one month for his conviction under Section 304 Pt.II IPC. 20. With the above modification in respect of the sentence and fine, the app eal is partly allowed. The appellant be set at liberty forthwith, if not wanted in any other case. 21. LCR be sent down to the Trial Court along with the copy of this judgment .