Crl.A. 399/2001 BEFORE HON’BLE MR. JUSTICE D.BISWAS HON’BLE SMT. JUSTICE A.HAZARIKA D.Biswas, J The learned Sessions Judge, Jorhat on conclusion of trial in Ses sions Case No. 71(J-J)/99 convicted the appellant Jatin Bora under Section 302 I PC and sentenced him to imprisonment for life and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for another one month. Being aggrieved thereby, the appellant has preferred this appeal on various grounds enumerated in the memorandum of appeal. 2. P.W.1 Jagat Saikia lodged an ejahar before the Officer-in-Charge , Jengraimukh Police Station on 27.2.99 alleging that on the previous day around 4 p.m. residents of their village, namely, Sri Jatin Bora, Sri Bipul Bora, Sri Jan Saikia, Sri Biswa Bora and Smt. Dipali Saikia came to the compound of his ho use. They started altercation with them over a tube-well and caused death of his brother Pramod Saikia by inflicting injuries on his head and person by slapping him and assaulting him with lathi. 3. On receipt of the aforesaid ejahar, Jengraimukh P.S. Case No.4/ 99 under Section 302/34 IPC was registered. The police after registration of the case took up investigation, visited the place of occurrence, prepared the inque st report, recorded the statement of the witnesses and forwarded the dead body f or post mortem examination. On completion of investigation, chargesheet was file d against accused Jatin Bora, Bipul Bora, Jan Saikia and Dipali Saikia under Sec tion 302/34 IPC for causing death of Promod Ch. Saikia intentionally. 4. On commitment by the learned Magistrate, the learned Sessions Ju dge framed charge against the aforesaid four accused persons under Section 302/3 4 IPC. The charges were read over and explained to the accused persons, to which they pleaded not guilty and claimed to be tried. Eventually, on conclusion of t rial, the learned Sessions Judge acquitted accused Bipul Bora, Jan Saikia and Di pali Saikia of the charge under Section 302/34 IPC and convicted the appellant J atin Bora as aforesaid. 5. The learned Sessions Judge examined seven witnesses produced by the prosecution. The defence did not adduce any evidence. After examination of t he accused-appellant under Section 313 CrPC and hearing the argument, the impugn ed judgment was pronounced convicting and sentencing the appellant as mentioned hereinbeore. 6. P.W.5 Dr. Pabitra Mili performed the post mortem examination on the dead body of Promod Saikia. The injuries found on the dead body are as follo ws :- External Appearance A male dead body Rigor mortis present aged about 30 years. Face is pale. Eyes and mouth are closed. Lacerated Wound 5 X 2 is present at the right side of the temporal part of the skull. Lacerated was over left side of the chest. Skull Scalp is depressed an communated fracture size 4 c.m. x 3 c.m. at right parietal bone. Membrane Lacerated & haemorrhage. Brain & Spinal Cord Brain matter of the left parital region is haemorrhaged. Other organs are almost normal. Injuries were ante mortem in nature. In the opinion of the doctor, the death was due to shock and hae morrhage resulting from the head injury due to fracture of the scalp. The doctor further opined that the injuries were caused by heavy blunt object (lathi). Acc ording to the doctor, the injuries found on the head were sufficient to cause de ath in the ordinary course of nature. 7. The evidence of the Medical Officer read with the inquest report (Exhibit-3) conclusively prove that Promod Saikia died of the injuries caused o n his head . 8. Mr. P Bora, learned counsel for the appellant did not challenge the prosecution allegation of quarrel over a tube-well and the assault made by t he appellant Jatin Bora on the person of the deceased Promod Saikia. The learned counsel argued that the evidence on record disclose that the dispute started ov er a Government tube-well and its removal and in the process the appellant struc k a blow on the head of Promod Saikia. Only a single blow was dealt with by the appellant without any intention to cause the death of Promod Saikia. Therefore, the case at hand may at best be a case for conviction under Section 304, Part-II IPC. Mr Mazumdar, learned Public Prosecutor, however, defended the judgment of conviction and sentence. 9. We have examined the evidence on record. P.W.1 Jogot Saikia is t he brother of the deceased. He is not an eye witness to the occurrence. He was i nformed about the occurrence by a small boy. He came to the place of occurrence and found his brother lying in an unconscious state with injury on his head. He saw the accused-appellant going away with a lathi in his hand. From the evidence of P.W.2 Robin Bora, we find that he was engaged by one Dadhiram Bora and Promo d Saikia (deceased) to dig out one Government tube-well from the roadside and to install it in the premises of Dadhiram Bora. After some time the appellant alon g with others came in a body and demanded a portion of the tube-well. Promod Sai kia obstructed them and in the process appellant Jatin Bora assaulted him on his head. P.W.3 Konok Saikia stated that after removal the tube-well was installed in front of the house of the deceased. P.W.6 Smt. Potoli Saikia is the wife of t he deceased. She also indicted Jatin Bora as the assailant of her husband. She s tated that appellant Jatin Bora objected to the installation of the tube-well an d demanded a part of the pipe. Her husband opposed and there was a tussle betwee n them. Her husband resisted Jatin Bora from taking away the pipe. Thereafter, J atin assaulted him with a stick. P.W.7 Chandra Bora is not an eye witness to the occurrence. He is a signatory to the seizure list, Exhibit-4. 10. The evidence of the witnesses discussed above clearly show that the deceased along with one Dadhiram dig out a Government tube-well and wanted t o install it near his house. This led to a dispute between the deceased and the appellant followed by a tussle and in the process the appellant dealt with a sin gle blow on the head of the deceased with a lathi. From the facts and circumstan ces, it is apparent that the appellant was to some extent provoked for unlawful removal of the Government tube-well by the deceased and others. His demand for a share of the pipe was also not acceded to. There was a tussle between the appel lant and the deceased and in the process, he dealt with a lathi blow on the head of the deceased in a hit of passion. Therefore, it cannot be said that he had t he intention to kill Promod Saikia. The occurrence took place in a hit of passio n while the appellant was in a provoked state of mind. That apart, Promod Saikia died at a later stage. He was taken to a doctor at Naya Bazar and treated there . Promod Saikia was in a position to speak. He also named the appellant as his a ssailant. Promod was brought back home after treatment and later on he died. Thi s further shows that adequate medical treatment was not made available to the de ceased. Perhaps, with adequate medical treatment, the life of the deceased could have been saved. 11. In view of the above discussion, we are of the opinion that the appellant had no intention to eliminate Promod Saikia. He had assaulted him in a hit of passion. He had, however, the knowledge that by assaulting Promod with a lathi on his head, he was likely to cause his death. Therefore, in our opinion, a case for conviction under Section 304, Part-II IPC has been made out by the p rosecution in the instant case. 12. Consequently, we modify the impugned judgment, convict the appel lant under Section 304, Part-II IPC and sentence him to rigorous imprisonment fo r five years. 13. The appeal accordingly stands disposed of.