BABUL PATAR vs STATE OF ASSAM

Ajit Singh, C.J.

1.The sole appellant Babul Patar has been convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of

Rs.5,000/- with default stipulation.

The victim of the incident was Debeswar Patar, aged about 48 years.

The prosecution case that has been proved against the appellant is that on 21.9.2009, around 12 O’clock, Debeswar was sleeping in his house

which had a tin roof. Near the house, there was a ‘Hilikha’ tree. The son of appellant was pelting stones at the tree so that ‘Hilikha’

fruits may fall and he could collect them. The pelting of stones and falling of fruits on the tin roof disturbed Debeswar. He, therefore, chased away the

son of appellant. The appellant on being informed about this felt so enraged that he came and suddenly dealt a blow with a split bamboo on the head of

Debeswar. Unfortunately, the head injury resulted into the death of Debeswar on the spot. Rumi Patar (PW-8), who was working nearby, saw the

appellant giving the fatal blow on the head of Debeswar. The First Information Report was lodged by younger brother â€" Seven Patar (PW-2) of

Debeswar. On the post mortem examination, only one head injury was found on the dead body. Rumi Patar (PW-8) has clearly deposed that she

actually saw the appellant giving one stroke on the head of Debeswar, due to which he fell down on the ground.

Learned counsel for the appellant, having regard to the ample evidence against the appellant, has not assailed the prosecution story which is well

founded and fully proved. We accordingly affirm the finding of the Trial Court that appellant alone was the perpetrator of crime.

Learned counsel for the appellant has, however, argued that even accepting the prosecution case in totality, it cannot be said that appellant had the

intention to murder Debeswar as there was no ill will between them and, as such, the offence will not be under Section 302 of the Indian Penal Code,

but under Part-I or Part-II of Section 304 of the Indian Penal Code. We find sufficient force in this submission. As seen above, even according to the

prosecution case, the incident took place on a sudden quarrel without any premeditation over disturbance caused to Debeswar due to pelting of stones

by the son of appellant, who was chased away. In this part of the country, split bamboo is kept by every villager and is normally never used as

weapon. The appellant, however, on being informed that his son was chased away by Debeswar, he in a heat of passion, dealt one blow with it on the

head of Debeswar. There is nothing on record to show that appellant had taken undue advantage and acted in a cruel or unusual manner. Having

regard to the circumstances in which the incident took place, we are unable to believe that appellant had the intention to cause the death of Debeswar.

It can, however, be safely held that he had the knowledge that by causing head injury to Debeswar with a split bamboo, the latter would die.

Consequently, we set aside the conviction of appellant under Section 302 of the Indian Penal Code and sentence of life imprisonment awarded to him

and, instead, convict him under Section 304, Part-II of the Indian Penal Code and award a sentence of 6 years rigorous imprisonment. The sentence

of fine is, however, affirmed. The appellant is in jail and he be released on his undergoing the jail sentence awarded by us.

With the above modification, the appeal is partly allowed.