Chutu Chowra vs State of Assam

D.N. Chowdhury, J.—This is a Jail Appeal against the judgment and order passed learned Additional Sessions Judge, Jorhat convicting the accused u/s 302 of I.P.C. and sentencing him to undergo regorous imprisonment for life and also to pay fine of Rs. 100/- and in default further imprisonment for 1 month.

First Information report was lodged before the Mariani Police Station alleging inter alia that the accused Chutu Chowra, brother-in-law of Chutu Basur caused the death of the deceased by hitting him with a broken bottle at about midnight or at 1 am on 7.9.93. Said accused also caused injury to his elder sister. On receipt of the FIR, Mariani P.S. Case No. 115/93, u/s 325/302 IPC was registered. In due course Police submitted charge-sheet u/s 302 I.P.C. The learned Trial Court examined six witnesses including P.W. 1. Defence examined none.

P.W. 1, Smti Birchi Chowra wife of deceased Chutu Chowra is the sole eye witness and also is the sister of the accused. The witness stated that on the night of the occurrence the accused came to their house as a guest. After the night meal all of them retired to their beds, including the accused, and after sometime the accused reached to the room of his sister and brother-in-law. There was an altercation between the accused and her husband and thereafter both of them went to their respective places. According to this witness when her husband was asleep the accused came and hit on his head with a bottle and also hit in different parts of his body with broken bottle. When the occurrence took place and open lamp was burning. The accused assaulted with the broken bottle to the deceased and when she offered her resistence she was also assaulted. The witness deposed that the deceased died because of the assault of the accused.

P.W. 2, Sri Kaulua Basur, is the informant and the elder brother of the deceased. He found the injuries of the deceased on neck face and in other parts of the deceased. P.W. 1 told him that the accused caused the death of the deceased and thereafter ran away from the place of occurrence. The witness deposed that he did not see the occurrence but he found some broken piece of bottle inside the house.

P.W. 3, Sri Gaurilal Rabi Das was not any eye witness and he was only reported about the incident by the P.W. 1.

P.W. 4, Khairul Islam was the relieving Investigation Officer, who only collected the post mortem report and submitted charge sheet.

Dr. Pankaj Kr. Baruah was examined as P.W. 5, who conducted the post mortem report and found the following injuries:

... Injury deep penetrating wound of 7x8 cm. in length infront of the neck oblique exposing the tracea of the great vessels (arteri).

2) Bruise present over the head with lecerated injury of 1x2 cm of the left fore head extending for bridge of nose to the frontal eminence.

3) Scalp. Vertibreae Bruise and laceration present as described above.

Memberance-and brain-Healthy.

Throx-Wals, ribs and cartileges on the right clevicle is fractured other healthy.

Larynx and trucheae are cut and exposed.

Right Lung and Left Lung Congested.

Heart-Both Chambers empty.

Great Vessels-Sub-claviele, artery is exposed in front is the right side.

Abdomen-Undigested good particales present with gasious distention.

Other-health.

Right clevicle is fractured (Sic)

All the injuries sustained by the injured an antemortem...

P.W. 6 is the S.I. of the Police. He visited the place of occurrence and examined the witness. From the place of occurrence he siezed some blood stained pieces of broken glass by Ext. 3 the siezure list. He prepare the inuquest report and sent the corpse for autopsy. Ext. 3(2) is his signature. Ext, 2 is the seizure list and Ext. 2(2) is his signature. In the meantime he was transferred and handed over the case diary to the O/C. The O/C arrested the accused.

Considering the evidence, mainly relying the evidence of P.Ws. 1, 2, 3 and 5 the accused was found guilty in causing the death of the deceased, the husband of the P.W. 1 and accordingly held the accused guilty u/s 302 of the IPC and sentenced as such by the learned trial Court.

Mr. H. Roy, the learned Counsel appeared on behalf of the Appellant as amicus curiea. Mr. Roy is heard at length. Mr. Roy took pain in placing the entire materials on record leading to the conviction of the accused.

We have also heard Mr. J. Singh, the learned Public Prosecutor, learned P.P. fairly submitted that the accused was rightly found guilty for causing the death of the deceased. The accused while inflicing the injuries had the necessary knowledge that the injury caused would be sufficient to cause death of the deceased.

From the evidence on record there can not be any dispute about the death of the deceased in the manner alleged. P.W. 1 is the eye witness who was present at the place of occurrence. She candidly and fairly narrated the entire incident that, that took place in her presence. The veracity of the witness is not in doubt. The learned Trial Court rightly acted on the witness of the P.W. 1. We have ourselves also considered the entire materials on record and we did not find any ground to dis-agree with the finding of the learned Trial Court so far the involvement of the accused is concerned Mr. H. Roy, the learned Amicus Curiea in course of his argument pointing to the injury and the other attending circumstances submitted that the accused could not have been convicted for offence u/s 302 IPC. Taking into consideration the evidence on record and the weapon that was used, it can not be said that the prosecution succeeded in bringing home the offence u/s 302 IPC of the accused. No doubt that there is some evidence causing bodily injury to the deceased but materials on evidence does not disclose that the accused in fact intended the bodily injuries to be inflicted on the deceased which was sufficient in the ordinary course of nature to cause death. From the circumstances that led to the assault and the other attending facts situations it can not be inferred that the Appellant causedthe death by doing an act with the intention of causing the death, it can at best be inferred that the act was done with the knowledge that it was likely to cause death but without any intention to cause death or to caused such bodily injury as was likely to cause death. However from the nature of guilt and attending circumstances, we can not come to the finding that the accused in fact had the necessary intention to cause death. After giving our careful thought to the nature of offence we are of the considered view that the offence committed by the Appellant would more appropriately fall u/s 304 Pt. II of the IPC.

For the foregoing reasons the appeal is partly allowed. The conviction of the Appellant u/s 302 IPC is altered to one u/s 304 part-II of the Indian Penal Code. Consequently the sentence of life imprisonment and fine awarded to the Appellant is set aside. The Appellant is now sentenced to suffer regorous imprisonment of 6 years (Six years) for the altered conviction.

Before parting with, we record our appreciation to the service of Mr. Hrishikesh Roy, the learned Advocate who acted as an amicus curiea. When we wanted to order on the State Government for payment of the fee of the amicus curiea, as per usual practice of the Court in such matter, Mr. Roy stood up and requested us not to pass such order, and submitted that he only intended to provide free legal aid to the accused who did not possess the necessary where withal to defend his case. We acknowledge our appreciation to Mr. Roy for upholding the cause of justice.